^f^^^m^^^ 

 
 2 /-/-ii^ru. Crz^c^t^ 
 
 A 
 
 SELECTION OF CASES 
 
 ON 
 
 THE ENGLISH LAW OF CONTRACT.
 
 ionHon: C. J. CLAY AND SON, 
 CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, 
 
 AvK Makia Lane. 
 
 CAMBKIDGE: UEICHTON, BELL AND CO. 
 LEIPZIG: F. A. BROCKHAUS.
 
 iY 
 
 SELECTION OE CASES 
 
 ON 
 
 THE ENGLISH LAW OF CONTEACT 
 
 » 
 
 GERARD BROWN FINCH, M.A. 
 
 OF LINCOLU'S INN, ESQ., BAKRISTEK AT LAW; LAW LECTDBEB AND LATE 
 FELLOW OF queens' COLLEGE, CAMBRIDGE. 
 
 PREPARED AS A TEXT-BOOK FOR LAW STUDENTS 
 IN THE UNIVERSITIES. 
 
 LONDON: 
 
 C. J. CLAY AND SON, 
 
 CAMBRIDGE UNIVERSITY PRESS WAREHOUSE. 
 
 188G 
 
 [All Rights reserved.]
 
 T" • 
 
 ^^Jurisprudence, in general, has two sides, the one is science or theory 
 and the other the practice of ordinary life; in regard to the latter, we 
 Germans are in a wrong way : in other countries things are better, 
 iiiasmvLch as the knowledge of theory goes more liand in hamd tvith the 
 relations of practical life. * * * * ^ practical knowledge must s^ipport 
 historical jurisprudence, and if any one has got that, he can easily master 
 all scholastic speculations." 
 
 NiEBUHR, Lectures on the History of Rome, 
 Edited by Dr Schmitz, Vol. I. p. 345.
 
 V 
 
 INTKODUCTION. 
 
 On the publication of this work, designed as a text book for 
 the use of students in the Universities, the Author deems it de- 
 sirable to draw attention to the subject of Legal Education. He 
 does so because of the paramount importance of the law as affecting 
 the well-being both of the State and of the individual, and because 
 of the great benefit which a University has in its power to confer 
 upon the community by an efficient and enlightened School of 
 Law. He does so also because the study of the law, wisely con- 
 ducted, is so powerful an instrument for forming and developing 
 the powers of the mind. 
 
 On the importance of the subject there is no need to dwell at 
 length, for it is on the law that the safety, the life, of the common- 
 wealth depend. And inasmuch as legislation may have the effect 
 either of strengthening and developing the constitution of ovir country 
 or of introducing innovations that may ruin it, of enlarging and 
 preserving the freedom of the individual or of letting in restraints 
 that may destroy it, the cultivation of a proper science of law is 
 seen to be of the highest importance. Of the benefit which such 
 a science may derive from its prosecution in a University some 
 remarks will be made before the close of this introduction. 
 
 But the question which the Author wishes first to consider is 
 this : — Does law as a branch of human learning contain in itself 
 the elements necessary for providing a good education? Does the 
 study of law tend to enlarge and enrich the mind, and at the same 
 time to develope its powers ? — For if it answers these two conditions, 
 F. b 
 
 nVD59
 
 vi INTRODUCTION. 
 
 of furnishing large and wide resources of thought and of quickening 
 and developing the powers of the mind, it satisfies the fundamental 
 requisites of a good education. 
 
 We need only call to mind what law is, and mention a few 
 of the matters to which it relates, to shew how far-reaching are 
 its subjects of thought ; how great ai-e its accumulated stores ; 
 liow full of profound human interest and concern are the questions 
 with which it deals. Its name alone suggests something orderly, 
 a reasoned conception of the mind, the product of observation, 
 experience and thought. And it is more, it is a precept springing 
 from one of the strongest instincts of the soul, the love of justice. 
 As distinguished from natural philosophy, which relates to the phe- 
 nomena of nature, law relates to the actions of men. It regulates all 
 the concerns of man as a social being ; his rights, his duties, his 
 capacities and his incapacities in regard to persons and to things. 
 Law deals with the right of personal security, the right of personal 
 liberty, and the right of private property. It secures to man 
 the enjoyment of tis life, of his health, his reputation. It protects 
 him from arbitrary power on the one hand, and from anarchy on 
 the other. It secures to him the free use and disposal of all 
 his acquisitions, and the equally precious freedom of thought and 
 discussion. 
 
 If we take Bacon's aphorism, and say with him satis magnum 
 alter ulteri theatriim suiiius, then to the student law is the most 
 interesting product of the human mind. And if we recall but a 
 few of the multitudinous mutters with which law deals, the con- 
 stitution of the government of the country, the tenure of land, the 
 property and possession of things personal, civil injuries and crimes; 
 if we merely name such matters as commercial law, admiralty law, 
 ecclesiastical law, and the law of procedure in the courts ; and if 
 wc remember that each of these provinces of law represents a great 
 body of rules, notions and distinctions, the product of reason, justice 
 and experience applied to the particular department, it will be seen 
 that a man taught only to acquire a knowledge of the law at any 
 one time, the law as it now exists in this land, would be provided 
 with a rich and abundant store of thought, for the acquisition of 
 which high powers of the mind would be required. Such a learning,
 
 INTRODUCTION. Vll 
 
 however, would not be enough. It would not serve sufficiently to 
 open and liberalise the mind. 
 
 Our law, however, is constituted of tlie enactments of Parliament 
 and of the custom of the realm. It is not a thing of the day or the 
 product of any one age. It has grown with the social development 
 of the people. It cannot be understood without a reference to the 
 past to explain a conception or to interpret a rule. And so in the 
 proper study of the law history comes in as a prominent factor, the 
 history, in fact, of the nation's civilization. It is in this department 
 of the learning of the law that we find the most effectual antidote 
 to whatever is naiTow and illiberal in the learning of a mere system. 
 
 Let us take as an instance the law relating to the tenure of land 
 in this country. What a light it throws on the structure of society 
 at every epoch ! It introduces us almost at once to that remarkable 
 institution which i'or something like a thousand years formed the 
 framework of society and government in Europe, the feudal system. 
 That institution was established by the nations that overthrew the 
 Roman Empire, and who, in overthrowing it, spared the Roman 
 inhabitants, and allowed them to be governed by their own laws. 
 These people and their laws gradually coalesced with the Teutonic 
 conquerors and their laws and institutions. The feudal system 
 therefore bears abundant traces of Roman influence, and the explorer 
 of the source of many important features of English law, when he 
 comes to the period of the Norman conquest, finds the object of his 
 quest, not in the Anglo-Saxon institutions which immediately pre- 
 ceded that period, but among Teutonic customs in the heart of 
 Europe, and still further back in Roman Law. 
 
 Take again our commercial law, as to which it has been said 
 that no other country possesses one so rich, so broad, so just, so 
 exact as the English. We see it in its early stages growing under 
 the shadow of the feudal system, and we see how fronr the first 
 commerce began to modify the common law and to undermine and 
 destroy the feudal system. In Mr Warren's Legal Studies an in- 
 teresting contrast is drawn between Commerce and Feudalism. 
 Commerce, he writes, is diffusion ; feudalism exclusion. Com- 
 merce tends to lessen distinctions of rank in society ; feudalism 
 strengthens them. Commerce tends to make the earth one great
 
 viii INTRODUCTION. 
 
 nation ; feudalism breaks it up into an indefinite number of petty 
 nations. 
 
 In the state of the criminal law, at any period, in the crimes 
 dealt with by the courts, in the enactments of Parliament for the 
 repression of crime, and especially in the punishments awarded 
 for crimes, the student finds evidence of the manners and the moral 
 sense of a people. 
 
 Subjects such as those, so full of interest, so rich in materials 
 for thought, are a necessary part of the proper study of the 
 English law. Nor is this all. For a scientific study of our law we 
 must also study Roman law, and Roman law has this advantage 
 from an educational point of view, that it is a complete system ; a 
 system characterised by breadth of compass, by robust intelligence 
 and good sense, and by the severest logic. 
 
 But the range of subjects available for a broad and liberal 
 education is not limited to those just glanced at. The sources of 
 interest and of instruction are further widened when we enter upon 
 tlie law of archaic times. In this field, opened for us by Sir Henry 
 Maine in his "Ancient Law," we become acquainted with the ideas 
 that prevailed in the earliest stages of historic man. The field be- 
 comes more important and still richer in results when, in his " Early 
 History of Institutions," Sir Henry makes the comparative method 
 of investigation yield lessons adapted for the present time. When 
 he calls attention to the fact of the political ideas of a race, and its 
 ideas of property also, being bound up with the notions of family 
 interdcpendency, of collective ownership and of natural subjection to 
 patriarchal rule, law lends a lesson of profound importance to the 
 statesman and the legislator. The instincts of a race are an en- 
 during ftxctor that must be reckoned with ; and the statesman who 
 would successfully govern a people must give a wise and sympathetic 
 study to its ancient laws and in.stitutions. For whence do these 
 laws and institutions spring? They come from the fundamental 
 character of the race and the circumstances of its environment, 
 and although they grow as the race grows in intellect and moral 
 sense, they are ever characterized by the leading characteristics of 
 the people. 
 
 But law in its ultimate source springs from that which resides
 
 INTRODUCTION. IX 
 
 in the breast of every human behig, the power that makes for right- 
 eousness. In the devoted and elevated language of Richard Hooker', 
 "of Law there can be no less acknowledged, than that her seat 
 is the bosom of God." The extent to which this divine con- 
 sciousness has found expression in the laws of a people is the test 
 of the quality of its civilization. The law at any one time does not 
 enforce all the duties which the sense of right in men enjoins upon 
 the individual ; it enacts only those which have become the general 
 rule of action, the custom of the commonwealth. But it is con- 
 tinually receiving accessions from this ultimate source of human 
 law before referred to. The rise and growth of our Courts of Equity 
 afford an illustration of this ; the growth of our Common Law abun- 
 dantly proves it. The region where law touches upon ethics forms 
 an important and interesting subject for the advanced student in 
 the course which is the subject of this discussion. We enter this 
 region when we come upon such a question as whether a vendor is 
 bound to acquaint a purchaser with the defects of the subject of 
 the contract, or whether one of two contracting parties may keep 
 silence as to facts which he believes would be operative on the mind 
 of the other. 
 
 The study of law therefore involves the study of ethics, history, 
 politics, economics. The law itself consists of principles, notions 
 and distinctions. Let us consider for a moment the faculties and 
 powers of the mind required for grasping these ideas, and the high 
 character of the reasoning involved in their use and application, 
 which will be found to correspond in many respects to the reasoning 
 in natural philosophy. In dealing with a question in natural phi- 
 losophy we make use of such notions as mass, motion, momentum, 
 and energy, of such rules as the laws of motion, and we apply such 
 a principle as the conservation of energy. In dealing with a 
 question of law we employ such notions as estate, right, liberty, 
 injury, redress, such a rule as that every simple contract requires a 
 consideration to support it, and we proceed upon the principle — let 
 right be done. 
 
 Writing on this subject Mr Austin^ considered that the study 
 
 ' Of the Laws of Ecclesiastical Polity, Book I. Ch. xviii. 8. 
 - Essay on the Uses of the Study of Jurisprudence.
 
 X INTRODUCTION. 
 
 of the rationale of law was as well (or nearly as well) fitted as that 
 of matliematics to exercise the mind to the mere process of deduction 
 from given hj-potheses, and he cites the opinion of Leibnitz in his 
 support. And with rof^ard to an accurate and ready perception 
 of analogies, and the process of inference founded on analogy, the 
 study of law (if rationally pursued) was, in Mr Austin's opinion, 
 superior to that of mathematics, or of any of the physical sciences 
 in which mathematics are extensively applicable. For example, the 
 process of analogical inference in the application of law, the process 
 of analogical consequence from existing law, by which process mucli 
 of law is built out ; analogical inferences with reference to the con- 
 sideration of expediency on which it is built ; the principles of 
 judicial evidence, with the judgments formed upon evidence in the 
 course of practice ; all these shew that no study can so form the 
 mind to reason justly and readily from analogy as that of law. And, 
 accordingly, he says, it is matter of common remark, that lawyers are 
 the best judges of evidence with regard to matter of fact or exist- 
 ence. 
 
 The foregoing observations deal with law as the subject of educa- 
 tion. Much has been said at different times upon the aim to be 
 kept in view in its teaching in a University. Some insist that this 
 teaching should be entirely confined to the general principles of 
 law, that is to say, that it .should be wholly theoretical. Others 
 again contend for a teaching limited to the actual law of the country, 
 with a view to its being practical. It seems to the Author that 
 both these systems are defective. If a man wishes to understand 
 general principles he must know particulars. And if we desire to 
 obtain the great educational benefit of comparative jurisprudence 
 we must study past as well as existing systems of law. Of these 
 systems that of our own country should be one. For the laws of 
 P^ngland, independently of the fact that they have a wider range 
 of application than those of any other state or country, contain 
 in themselves a greater wealth of material and are of a higher 
 character than those of any past or existing system with which we 
 are acquainted. 
 
 But it has been said that a University teaching of law cannot be 
 practical. It is one of tlie objects of this introduction to shew, on
 
 INTRODUCTION. XI 
 
 the contrary, that it can, and that iu proportion as we make our 
 system of teaching practical, we make it more educational. 
 
 The English Common Law is the custom of the realm, and it 
 has been defined as consisting of rules and maxims concerning the 
 persons and property of men that prevail by the tacit assent and 
 usage of the people, resting for their sanction on immemorial use 
 and practice. Of these rules and maxims so sanctioned the Judges 
 are the exponents and interpreters. The decisions of the Judges are 
 recorded and reported in the Rolls, the Year Books, and the volumes 
 of the Reporters. We have records of litigations, which occurred 
 during the period of the Norman Conquest. These judicial records 
 contain the exposition of our Common Law. They are the source of 
 all the digests, compendiums and text-books ; and to them must the 
 student resort, if he would trace the source and development of any 
 legal rule or distinction. Would he learn the full meaning or 
 bearing of any such rule or distinction, he must read the cases 
 which establish and which illustrate it ; and he must examine the 
 facts in reference to which and the arguments on which the decisions 
 of the Judges were pronounced. In the study of the arguments of a 
 case, a man sees how arguments may be maintained on contrary 
 sides. And this, as has been observed, is desirable not from any 
 indifference to right or wrong, but because it is important to discover 
 the real state of the case, to discern its strength or weakness, to 
 assert and maintain his own cause, and to disentangle the fallacies of 
 the arguments on the other side. 
 
 Another advantage to be derived from this study is, that in the 
 Reports the student has examples of precise and accurate statement 
 of fact and clear definition of the issue involved. The decisions of 
 the Judges are not mere dry statements of rules and principles. 
 The student will there meet with a well-balanced weighing of facts, 
 a just criticism of arguments, a luminous exposition of law, and 
 occasionally far-sighted and lofty considerations of expediency, join- 
 ing for the moment the domain of the legislator with the province of 
 the judge. 
 
 And there is this further advantage, last but not least in the 
 eyes of the practical lawyer, that through the study of those Reports 
 a man becomes familiar with the tone of thought, the attitude of
 
 xii INTRODUCTION. 
 
 mind, which prevail in our Courts, he gets a touch of the genius 
 of EngUsh law, — the Author would venture to add — of the mind of 
 the English race. 
 
 In insisting on teaching by cases, it is not to be understood 
 that any doubt is suggested as to the value of disquisitions in 
 lectures ; lectures arc indispensable for the proper teaching of law. 
 The Author's wish is to see them supplemented. 
 
 The practice of teaching by cases is not new, it has prevailed at 
 Harvard University for many years, having been introduced by 
 Mr Langdell, on his appointment to the Dane professorship of law in 
 that University. 
 
 Writing in 1871, Professor Langdell said — " I entered upon 
 the duties of my present position, a year and a half ago, with a 
 settled conviction that law could only be taught or learned effectively 
 by means of cases in some form. I had entertained such an opinion 
 ever since I knew anything of the nature of law or of legal study. I 
 was called upon to consider directly the subject of teaching, not 
 theoretically, but practically, in connection with a large school, 
 with its more or less complicated organization, its daily routine, and 
 daily duties. To accomplish this successfully, it was necessary, first, 
 that the efforts of the pupils should go hand in hand with mine, 
 that is, that they should study with direct reference to my in- 
 struction; secondly, that the study thus required of them should 
 be of the kind from which they might reap the greatest and most 
 lasting benefit; thirdly, that the instruction should be of such a 
 character that the pupils might at least derive a greater advantage 
 from attending it than from devoting the same time to private 
 study. How could this threefold object be accomplished? Only 
 one mode occurred to me which seemed to hold out any reasonable 
 prospect of success ; and that was, to make a series of cases, carefully 
 selected from the books of reports, the subject alike of study and 
 instruction. But here I was met by what seemed at first to be an 
 insuperable practical difiiculty, namely the want of books; for 
 though it might be practicable, in case of private pupils having free 
 access to a complete library, to refer them directly to the books of 
 Reports, such a course was quite out of the question with a large 
 class, all of whom would want the same books at the same time.
 
 INTRODUCTIOX. XUl 
 
 It was with a view to removing these obstacles, that I was first 
 led to inquire into the feasibility of preparing and publishing such a 
 selection of cases as would be adapted to my purpose as a teacher. 
 Law considered as a science, consists of certain principles or doctrines. 
 To have such a mastery of these as to be able to apply them with 
 constant facility and certainty to the ever-tangled skein of human 
 affairs, is what constitutes a true lawyer ; and hence to acquire that 
 mastery should be the business of every earnest student of law. 
 Each of these doctrines has arrived at its present state by slow 
 degrees ; in other words, it is a growth, extending in many cases 
 through centuries. This growth is to be traced in the main through 
 a series of cases ; and much the shortest and best, if not the only 
 way of mastering the doctrine effectually, is by studying the cases 
 in which it is embodied." 
 
 Prof. Langdell accordingly prepared a selection of cases on the 
 Law of Contract, which was published in 1871. In a second edition, 
 which appeared in 1879, he added a summary of the topics covered 
 by the cases. The value of the work has been generally recognized. 
 His method was soon perceived to be educational and efficient. It 
 was subsequently adopted by Prof Ames, and selections of cases on 
 nine branches of the law are now used as te.xt-books in the Harvard 
 School of Law. 
 
 But there is another element in legal education which distin- 
 guishes the law from other branches of learning. That element is 
 speech. The lawyer properly so called must be an advocate, he 
 must be able to argue and discuss. The training of the reasoning 
 powers is of the vitmost value, but by itself it fits a man only for 
 chambers or the study ; it is the combination of reason and speech 
 that is required for a Court of Law, or for Parliament, or any other 
 department of public life. How many accomplished men there are, 
 whose usefulness in public life is marred through defect in the power 
 of expression in speech ! Reason and speech, it has been observed, are 
 man's most powerful weapons, and are the sources of his lofty pre- 
 eminence. 
 
 We know that disputations once prevailed in the Universities, 
 not only of this country, but of Europe ; and Mr Latham, in his 
 book "On the Action of Examinations Considered as a Means of 
 F. c
 
 xiv INTRODUCTION. 
 
 Selection," has traced iu his pointed aud lively style the causes 
 which led to their deserved disuse. The Author has no desire to 
 suggest their revival. But there is not a doubt of this in the minds 
 of those familiar with the matter, that the practice of oral question 
 and answer and of oral discussion of instructive points in the law 
 classes, a practice which has been adopted in the Law Schools of 
 most of the American Universities, is of the very highest value in 
 legal education. A student who has been accustomed in the class- 
 room to state the facts of a case which has been, or is about to be, 
 the subject of consideration, who has answered before the class 
 questions of law arising out of the case or cognate to it, who has 
 been accvistomed to attend the moot courts, which are held in all 
 the Universities, and there to take part in cases either as counsel or 
 judge, has undergone direct training for work in the legal profession ; 
 he has learned a great deal of that which will be required of him 
 in the conduct of a case at the Royal Courts of Justice. And be 
 it remembered that all this is done, not at the expense of his other 
 teaching ; on the contrary, its effect is to enhance the value of that 
 teaching, to strengthen and bring out the student's powers. To 
 obtain from legal education its full benefit we must encourage the 
 practice of oral discussion ; we must revive speech in our schools. 
 
 If then we add to the teaching of law by text-books and lectures 
 instruction in cases, if we accustom the student to analyse and 
 compare decisions and arguments in search of rule or principle, if 
 we accustom him to state facts, to formulate his ideas in answerinsr 
 questions, if we exercise him in arguing debateable questions of law, 
 we supply most efficient means for forming and developing the powers 
 of his mind. 
 
 It may thus be seen that legal teaching, as it becomes practical, 
 does, in fact, become more educational. How practical the system 
 pursued in the American Universities is may be gathered from the 
 fact that in many of the American States the student who has 
 obtained a degree in law at a University is admitted to the pro- 
 fession as of course. It is a common saying at the Bar in the State 
 of Massachusetts that the three years' course at Harvard is equal 
 to seven years' work in an office. 
 
 The following is a brief outline of the course of instruction in the
 
 INTRODUCTION. XV 
 
 Law School at Harvard. It is divided into two Courses, the Ordinar}' 
 Course, and the Honour Course. In the Ordinary Course, in the 
 first year, the student is required to take up : — ' 
 
 Real Property. 
 
 Contracts. 
 
 Torts. 
 
 Criminal Law and Procedure. 
 
 Civil Procedure at Common Law. 
 
 In the second year he must take up five out of the following six 
 subjects : — 
 
 Evidence. 
 
 Jurisdiction and Procedure in Equity. 
 
 Property. 
 
 Trusts. 
 
 Sales of Personal Property. 
 
 Bills of Exchange and Promissory Notes. 
 
 In the third year he must take up at least four out of the follow- 
 ing seven subjects : — 
 
 Jurisdiction and Procedure in Equity. 
 
 Partnership and Corporations. 
 
 Constitutional Law. 
 
 Agency. 
 
 Wills and Administration. 
 
 Law of Persons. 
 
 Suretyship and Mortgage. 
 
 The subjects are the same for the Honour Course, but in the 
 latter certain of the subjects are not elective, the student is bound to 
 take them up. The subjects it will be observed belong exclusively to 
 American and English Law. Graduates of Colleges are admitted 
 into this school without examination; those who are not Graduates of 
 Colleges are admitted only upon passing an examination in Latin and 
 Blackstone's Commentaries. French or, with the permission of tlie 
 faculty, some other language not English, may be substituted for 
 Latin. The degree of Bachelor of Laws is conferred upon students 
 who, having been in the school at least two full years, pass satisfactory 
 examinations in the entire course of the three years. The examina- 
 
 r 9
 
 XVI INTRODUCTION. 
 
 tions in the studies of the second and third years must be passed at 
 the end of each year respectively. In the studies of the first year, 
 the examination must be passed either at the end of that year or in 
 the September following. In order to obtain the Honour Degree, 
 the candidate must obtain in the examinations in the studies of the 
 second and third years an average of not less than seventy-five per 
 cent, of the maximum mark in each of those years. The advantage 
 of having an examination at the end of each year, in the subjects of 
 that year is, that it causes the student to work with something like 
 uniformity throughout his course, and that it saves him from the 
 terrible strain upon the memory, which an examination in all the 
 subjects at one time would inflict. With how much more force 
 and freshness can the subjects of the second and third years re- 
 spectively be grasped when the undivided attention of the mind is 
 devoted to them ! 
 
 No degree in Arts is given for passing the examinations in Law. 
 Nearly all the students in Law as a rule have taken a degree in Arts 
 before entering the Law School. 
 
 Teaching the subjects above mentioned, partly by disquisitions in 
 lectures, and partly by instruction in cases ; calling in the aid of oral 
 question and answer, and oral discussion in all the class-rooms ; pro- 
 moting courts amongst the students to discuss debateable questions 
 of law — the professors themselves from time to time also holding such 
 courts, — Harvard University by these means does fit men for prac- 
 tice as advocates at the bar and as attornies, and that, too, with the 
 success which has been mentioned. 
 
 It will thus be seen that the whole of the training deemed neces- 
 sary for admission to the bar or to practice as a solicitor can be 
 carried on at a University. And though the Author does not suggest 
 that such a course should be adopted in our English Universities, he 
 does wish to shew that much more of the work of preparation for 
 the legal profession than has been hitherto thought practicable can 
 be carried on within them, and that it is in the power of the great 
 Universities to have exactly such schools of law as may be most 
 useful to the State, most advantageous for the promotion of learning, 
 and most beneficial for the youth who are to become members of the 
 legal profession.
 
 INTRODUCTION. xvil 
 
 There are in one of the volumes of Reports some remarks of the 
 late Lord Chief Justice Erie on the duties imposed upon, the qualities 
 required of, an advocate, and they are so important, so germane to 
 the view which the Author desires to enforce, that he ventures to 
 quote them here ; and he would ask those acquainted with the 
 Universities to consider how much may be done by these bodies 
 towards fostering and developing the character there described. 
 
 " We are aware," said Lord Chief Justice Erie, " that, in the class 
 of advocates, as in every other numerous class, there will be bad men, 
 taking the wages of evil, and therewith also for the most part the 
 early blight that waits upon the servants of evil. We are aware also 
 that there will be many men of ordinary powers, performing ordinary 
 duties without praise or blame. But the advocate entitled to perma- 
 nent success must unite high powers of intellect with high principles 
 of duty. His faculties and acquirements are tested by a ceaseless 
 competition proportioned to the prize to be gained, that is, wealth 
 and power and honour without, and active exercise for the best gifts 
 of mind within. He is trusted with interests and privileges and 
 powei's almost to an unlimited degree. His client must rely on him 
 at times for fortune and character and life. The law trusts him with 
 a privilege in respect of liberty of speech which is in practice 
 bounded only by his own sense of duty ; and he may have to speak 
 upon subjects concerning the deepest interests of social life, and the 
 innermost feelings of the human soul. The law also trusts him with 
 a power of insisting on answers to the most painful questioning ; and 
 this power, again, is in practice only controlled by his own view of the 
 interests of truth. It is of the last importance that the sense of duty 
 should be in active energy proportioned to the magnitude of these 
 interests." 
 
 What home more congenial for the growth of these qualities 
 and of this character can be found than in an ancient University 
 with its great traditions, its high tone and its generous emulations ! 
 
 It has been a reproach to this country that the study of law 
 as a science has been neglected among us. In the preface to the 
 Rolls of the King's Court' in the reigns of Richard the First and 
 John, Sir Francis Palgi'ave called attention to the priceless value of 
 
 ' Rotuli Curise Kegis.
 
 .wiii INTHODUCTIOX. 
 
 the long line of our judicial records. He pointed out that their 
 interest was not local or peculiarly appertaining to this our country ; 
 that they were the property not merely of England, but of the 
 English people, wheresoever settled or dispersed ; and that they con- 
 tain the germ and foundation of the laws obtaining in those states 
 which, rising beyond the ocean, seem appointed to preserve the 
 language and the institutions of England beneath other skies, 
 when the empire of the parent commonwealth should have passed 
 away like a dream. He dwelt on their great value in the estimation 
 of the able and learned men, amongst foreign nations, and more 
 particularly the Germans, who were applying themselves to the 
 study and discussion of jurisprudence with a laborious research into 
 historical facts, and an enlightened pursuit of legal science, which 
 might at once excite our national emulation and check our national 
 pride. " For," said he, " in England no branch of study, no pursuit, 
 receives so little elegance from the acquirements of literature, or the 
 investigations of philosophy, as the law. Its professional members 
 are distinguished for their knowledge and their talent, but they 
 labour to cultivate and adorn every field except their own." 
 
 Mr Austin, in the essay before referred to, spoke of the want of 
 an institution like the Law Faculty in the best of the foreign Univer- 
 sities. He contemplated that in such a school young men, not 
 intending to practice, but destined for public life, might find instruc- 
 tion in the sciences which were requisite for legislation, as well as 
 those who were intended for the practice of law. Among the effects 
 which he anticipated would result from the establishment of such a 
 Law Faculty was the advancement of law and legislation as sciences 
 by a body of men specially devoted to teaching them as sciences. 
 
 More than any other form of government does a democracy, the 
 essential aim of which is liberty, and whose popular maxims may be 
 so easily overstrained, stand in need of the cultured criticism, the wise 
 and disinterested counsel, of men versed in that learning, referred to in 
 the early part of this introduction, of the laws and institutions of our 
 own and other countries and their history. By the study of these 
 laws and institutions, and especially of our own, by that just criticism 
 which consists in the discrimination of their best and most essential 
 and typical features, a guide is furnished for the legislator in pro-
 
 INTRODUCTION. xix 
 
 posing new laws. It is from the past that lessons for the future must 
 be drawn. " My advice to the reader," said Sir Edward Coko, " is 
 that he neglect not in any case the reading of the old Books of 
 Years, for assuredly out of the old fields must spring and grow the 
 new corn." 
 
 Mr Austin's opinion was that London possessed peculiar advan- 
 tages for the Law Faculty which he contemplated. But the forum is 
 as little necessary for the study of the science of law as is a workshop 
 for the study of natural philosophy. Moreover, the gathering to- 
 gether of a body of legal, medical or theological students at a college 
 devoted only to their ovm particular branch of learning is apt to 
 narrow the mind. An ancient seat of learning with its many sided 
 influences and its high standards of excellence would seem to be the 
 fittest place for the advancement of any science and for its teaching 
 with the greatest attendant advantages. 
 
 It will thus be seen that the study of law tends to enlarge and 
 enrich the mind, calls into action man's highest powers, and evokes 
 the noblest instincts of right and wrong. It embodies the contrast 
 between, and the victory of, cultivation as against ignorance, refine- 
 ment as against rudeness, intellectual power as against brute force. 
 It concerns the whole duty as well as the whole power and influence 
 of every citizen in every state. To an Englishman in particular it 
 makes a special call, for he belongs emphatically to a law-abiding 
 race. In all the relations of citizen, voter, member of Parliament, 
 witness in Courts of Justice, juryman, or magistrate, he will find that 
 a knowledge of law in its principles and even in its practice, will 
 conduce to the intelligent, conscientious and fearless performance of 
 the duties which each of those relations will entail upon him. And 
 of course, to descend to a lower or at all events a more restricted 
 class of considerations, it must be obvious to those who take up the 
 study of the law with a view to the practice of it as the special occu- 
 pation of their lives, that it is a matter of supi-eme importance to 
 consider, and having considered to adopt, the best course of prepara- 
 tion for that which has at all times been a race and a conflict, which, 
 whether one regards the class of competitors or the prizes which are 
 accessible, may well attract and will unquestionably exercise the very 
 highest talents of an educated man.
 
 XX INTRODUCTION. 
 
 It was with this view that the Author, on assuming the work of 
 a teacher of law, began to compile this selection of cases which he 
 now offers to the student. He entertains a conviction, based upon 
 the experience of twenty years practice at the Bar, that the study of 
 our law, whether pursued as a means of education, or for the purpose 
 of professional practice, can only be made to yield its richest fruits by 
 a study of cases ; and it is obvious that such a study cannot properly 
 be carried on where only one set of Reports is available for refer- 
 ence, and where many students are studying the same subject at the 
 same time. 
 
 The cases here brought together are authorities for the leading 
 rules and principles of the English law of contract ; a subject, which 
 while the most important in its bearing and the richest in the 
 interest and variety of its materials, relating as it does to almost 
 every branch of our law, is at the same time the most educational 
 from its logical and ethical nature. It possesses also this advantage, 
 that by the labour and research of many most distinguished and 
 able writers it has been brought into a comprehensive and orderly 
 system. 
 
 The cases have been selected chiefly with reference to the 
 masterly works of Mr Pollock and Sir William Anson, which to- 
 gether present a result valuable at once to the jurist, the prac- 
 titioner and the academic student. 
 
 The Author hopes that his work may prove an instrument of 
 education both in the theory and the practical application of the 
 law, a learning which has justly been described as the first and 
 noblest of human sciences. 
 
 Caubbidge, 
 
 January 17, 1886.
 
 TABLE OF CASES.
 
 TABLE OF CASES. 
 
 Adams V. Lindsell 
 Adderley v. Dison 
 Agra and Masterman's Bank, In re. 
 £x parte Asiatic Banking Cor- 
 poration 
 Alderson v. Maddison 
 Alliance Bank v. Broom 
 Anonymous, Year Book, 8 Edw. IV. 
 » „ 3 Hen. VII. 
 
 " ,. 21 Hen. VII. 
 
 Ashbury Eailway Carriage Co. v. 
 
 Riche 
 Ashby V. WTiite 
 Atkinson v. Denby. 
 Attwood V. 
 
 109 
 811 
 
 22 
 541 
 312 
 
 780 
 781 
 782 
 
 424 
 783 
 692 
 308 
 
 B. 
 
 Bannerman v. "White 
 
 Bailey v. Sweeting 
 
 Bainbridge v. Firmstoiie 
 
 Bayley v. Merrel 
 
 Behn v. Buniess 
 
 Bettini v. Gye 
 
 Bidwell V. Catton 
 
 Bilborough v. Holmes 
 
 Birkm^T v. Darnell 
 
 Bingham v. Bingham 
 
 Bolton V. Madden 
 
 Boone v. Eyre, cited at length 
 
 Boulton V. Jones 
 
 Bowen v. Hall 
 
 Bret V. J. S. and Wife 
 
 531 
 
 257 
 
 283 
 
 605 
 
 507 
 
 776 
 
 300 
 
 720 
 
 233 
 
 489 
 
 284 
 
 753 
 
 481 
 
 853 
 
 282 
 
 Britain v. Eossiter 249 
 
 Brittain v. Lloyd 373 
 
 Brooks V. Haigh 285 
 Burke v. South Eastern Railway Co. 67 
 
 Burnard v. Haggis 421 
 
 Butler V. Butler 459 
 
 Buxton V. Lister go8 
 
 Byrne v. Van Tienhoven m 
 
 Callisher v. Bischoffsheim 
 
 Carpenter v. Heriot 
 
 Carter v. Boehm 
 
 Cherry v. Heming 
 
 Clarke v. Guardians of Cuckfield 
 
 Union 
 Clermont v. Tasburgh 
 Collen V. Wright 
 Collins V. Blantern 
 Cooke V. Oxley 
 Couturier v. Hastie 
 Cundy v. Lindsay 
 
 D. 
 
 Davis V. Symonds §20 
 
 Dent V. Bennett ygg 
 
 Deposit Life Assurance v. Ayscough 648 
 Dickinson v. Dodds 100 
 
 Dunlop r. Higgins ug 
 
 Dunmore, Countess of, v. Alexander 129 
 Dutton V. Thompson 670 
 
 314 
 
 654 
 564 
 245 
 
 189 
 644 
 797 
 676 
 86 
 483 
 474 
 
 Eastwood V. Kenyon 
 
 326
 
 TABLE OF CASES. 
 
 XXUl 
 
 Edwards v. Weeks 699 
 
 Edwards v. AVickwar 587 
 Eliason v. Heushaw ■ 40 
 
 England ;'. Davidson 370 
 
 F. 
 
 Felthouse v. Biudley 35 
 
 Fentou i'. Emblers 242 
 
 Fetherstou v. Hutchinson 676 
 
 Fisher v. Richardson 29!) 
 
 Fitch V. Sutton 342 
 
 Flight 1'. Booth 581 
 
 Flight V. Reed 392 
 
 Foakes v. Beer 348 
 
 Foster v. Dawber 704 
 
 Foster v. Mackinuon 466 
 Foster j*. Redgrave n. 41 1 
 
 Fowle V. Freeman 205 
 
 Franklin v. Miller 751 
 
 Freeman v. Cooko 555 
 
 Freeth v. Burr 754 
 
 Frost r. Knight 760 
 
 G. 
 
 Gervais v. Edwards 826 
 
 Glaholm v. Hays 519 
 
 Goddard v. O'Brien 339 
 
 Good V. Cheesman 343 
 
 Goss V. Lord Nugent 708 
 
 Gray v. Gardner 720 
 Great Northern Railway Co. v. 
 
 Witham 296 
 
 H. 
 
 Hadley v. Baxendale 787 
 
 Haigh V. Brooks 285 
 Harris v. Great Western Railway Co. 5 1 
 
 Harris v. Nickerson 6 
 
 Harrison v. Cage 359 
 
 Hartley v. Ponsonby 334 
 
 Harvey v. Young 604 
 
 Henderson v. Stevenson 43 
 
 Hoadley v. M'Laine 363 
 
 Holman v. Johnson 679 
 
 Hoh-oyd v. Marshall 814 
 
 Household Insurance Co. v. Grant 143 
 
 Huguenin v. Baseley, Sir S. Romil- 
 
 ly's reply ii. 667 
 
 Hunt V. Hunt 
 Hyde v. Wrench 
 Hylton i'. Hyltou 
 
 842 
 
 84 
 
 657 
 
 Imp. Land Co. of Marseilles, In re 136 
 
 J. 
 
 Jennings v. Rundall 
 Jones i;. Ashburnham 
 
 K. 
 
 418 
 301 
 
 Kaye v. Button 
 
 384 
 
 Kelly V. Solari 
 
 503 
 
 Kibble, Kv parte 
 
 405 
 
 King V. GiUett 
 
 702 
 
 Kingston v. Preston 
 
 768 
 
 L. 
 Lampleigh v. Brathwait 
 
 382 
 
 Langden v. Stokes 
 
 699 
 
 Langridge v. Levy 
 
 636 
 
 Laythoarj) v. Bryant 
 
 207 
 
 Leask v. Scott 
 
 317 
 
 Lee V. Jones 
 
 588 
 
 Lees V. Whitcomb 
 
 360 
 
 Legal V. Miller 
 
 819 
 
 Lilley v. Doubleday 
 
 805 
 
 London Assurance v. Mansel 
 
 574 
 
 Loyd V. Lee 
 
 300 
 
 Ludlow, Mayor of, v. Charlton 
 
 183 
 
 Lumley v. Gye, judgment of Cc 
 
 )le- 
 
 ridge, J. 
 
 859 
 
 M. 
 
 
 Martin v. Nutkiu 
 
 829 
 
 Matthews v. Baxter 
 
 449 
 
 Mavor v. Pyne 
 
 745 
 
 May V. King 
 
 700 
 
 Mayne's Case 
 
 744 
 
 Medina r. Stoughton 
 
 606 
 
 Molton V. Camroux 
 
 437 
 
 Montefiori v. Montefiori 
 
 551 
 
 Morton v. Lamb 
 
 770 
 
 Jlountstephen v. Lakemau 
 
 233 
 
 Moycc V. Newington 
 
 650
 
 XXIV 
 
 TABLE OF CASES. 
 
 N. 
 
 National Savings' Bank Association, 
 
 In re 133 
 
 Nichols V. Raynbrcd 359 
 
 Nugent V. Smith 733 
 
 Offord V. Davies 
 
 Parker v. Ibbetson 
 Payne v. Cave 
 Pcarce v. Brooks 
 Pickard v. Sears 
 Piggott V. Stratton 
 Pillans V. Van Mierop 
 Pinnel's Case 
 Planch6 v. Colburn 
 Plevius V. Downing 
 PolhiU (;. Walter 
 Pordage v. Cole 
 Proof V. Hines 
 Pybus V. Smith 
 
 R. 
 
 Raffles V. Wichelhaus 
 Eamsgate Victoria Hotel Co. v. 
 
 Goldsmid 
 Ramsgate Victoria Hotel Co. v. 
 
 Montefiore 
 Rann v. Hughes 
 Reuss V. Picksley 
 Risney v. Selby 
 Roberts v. Watkins 
 Robinson v. Harman 
 Roscorla v. Thomas 
 Routledge v. Grant 
 Ryder v. Wombwell 
 
 S. 
 
 Sanky v. Golding 
 Scotson V. Pegg 
 
 87 
 
 728 
 2 
 682 
 552 
 833 
 269 
 338 
 747 
 715 
 616 
 766 
 659 
 451 
 
 491 
 
 98 
 
 98 
 279 
 215 
 607 
 457 
 785 
 379 
 
 92 
 409 
 
 451 
 355 
 
 Shardlow v. Cotterell 
 
 226 
 
 Sidenham v. Worliugton 
 
 368 
 
 Slim V. Croucher 
 
 558 
 
 Smith V. Hughes 
 
 492 
 
 Smith V. Reese River Co. 
 
 622 
 
 South of Ireland Colliery Co. v. 
 
 
 Waddle 
 
 196 
 
 Silencer v. Harding 
 
 4 
 
 Sturlyn v. Albany 
 
 281 
 
 T. 
 
 
 Tarrabochia v. Hickie 
 
 527 
 
 Taylor v. Brewer 
 
 81 
 
 Taylor v. Hilary 
 
 714 
 
 Taylor v. Laird 
 
 28 
 
 Thomas v. Cook 
 
 240 
 
 Thomas v. Thomas 
 
 263 
 
 Tweddle v. Atkinson 
 
 322 
 
 Tulk V. Moxhay 
 
 830 
 
 V. 
 
 Victors V. Davies 
 
 W. 
 
 Ward V. Hobbs 
 Ware v. Chappel 
 Warlow /'. Harrison 
 Watkins v. Rymill 
 Week V. Tibold 
 Weir V. Bell 
 Welford v. Beazely 
 Wennall v. Adney, note to t 
 
 Williams v. Carwardine 
 Williams v. Jordan 
 Winn V. Bull 
 Withers v. Reynolds 
 Wolverhampton Banking Co. Ex 
 parte 
 
 X. 
 
 Xenos V. Wickham 
 
 391 
 
 607 
 
 766 
 
 9, 17 
 
 71 
 
 80 
 
 627 
 
 204 
 
 1. 401 
 
 1 
 
 223 
 
 82 
 
 749 
 
 689 
 
 161
 
 CONTENTS. 
 
 Offer and Acceptakce 
 
 CHAPTER I. 
 
 PACiE 
 1 
 
 CHAPTER II. 
 Form of Contract. 
 
 Section I. 
 
 Contract under Seal ^"^ 
 
 Section II. 
 Statute of Frauds 2^* 
 
 CHAPTER III. 
 
 Consideration. 
 
 Description of Consideratioi 
 
 Section I. 
 
 . . 2G3
 
 XX vi CONTENTS. 
 
 PAGE 
 
 Section II. 
 Necessity of Consideration 269 
 
 Section III. 
 Adequacy of Consideration ...... 281 
 
 Section IV. 
 Compromise and Forbearance ...... 299 
 
 Section V. 
 Unreal Consideration 322 
 
 Section VI. 
 Executory Consideration . . . . . . .359 
 
 Section VII. 
 Executed Consideration ....... 368 
 
 CHAPTER IV. 
 
 Capacity of Parties. 
 
 Section I. 
 Infants .......... 405 
 
 Section II. 
 Corporations ......... 424 
 
 Section III. 
 Lunatic and Drunken Persons 437 
 
 Section IV. ' 
 
 Married Women . . . . . . . .451
 
 CONTENTS. 
 
 CHAPTER V. 
 
 Reality of Consent. 
 
 Section I. 
 
 Mistake .•••■' 
 
 Section II. 
 Misrepresentation . . • ■ 
 
 Section III. 
 Fraud .••••■ 
 
 Section IV. 
 Undue Influence • • • • 
 
 CHAPTER VI. 
 Unlawful Agreements . • • • 
 
 CHAPTER VII. 
 
 Discharge of Contract. 
 
 Section I. 
 
 By Agreement • ■ • • 
 
 Section II. 
 
 By Breach • • • • ' 
 
 Section III. 
 Damages for Breach of Contract 
 
 CHAPTER VIII. 
 Specific Performance . . • • 
 
 xxvu 
 
 page 
 466 
 
 507 
 
 604 
 
 654 
 
 676 
 
 699 
 
 744 
 
 780 
 
 808
 
 SELECT CASES ON CONTRACTS. 
 
 CHAPTER I. 
 OFFER AND ACCEPTANCE. 
 
 MARY ANN WILLIAMS v. WILLIAM CARWARDINE. 
 
 In the King's Bench, April 18, 1833. 
 
 [Reported in i Barnewall and Adolphus, G21.] 
 
 Assumpsit to recover 20^., wliich the defendant promised to pay to 
 any person who sliould give sucli information as might lead to the discovery 
 of the murder of Walter Carwardine. Plea, general issue. At the trial 
 before Park, J., at the last Spring Assizes for the county of Hereford, 
 the following appeared to be the facts of the case : One Walter Carwardine, 
 the brother of the defendant, was seen on the evening of the 24th of 
 March, 1831, at a public house at Hereford, and was not heard of again 
 till his body was found on the 12th of April in the river Wye, about 
 two miles from the city. An inquest was held on the body on the 13th of 
 April and the following days till the 19th; and it appearing that the 
 plaintiii' was at a house with the deceased on the night he was supposed 
 to liave been murdered, she was examined before the magistrates, but did 
 not then give any information which led to the apprehension of the real 
 oflFender. On the 2.5th of April the defendant caused a handbill to bo 
 published, stating that whoever would give such information as should 
 lead to a discovery of the murder of Walter Carwardine, should, on 
 conviction, receive a reward of 20^. ; and any person concerned therein, 
 or privy thereto (except the party who actually committed the offence), 
 should be entitled to such rew-ard, and every exertion used to procure a 
 pardon ; and it then added, that information was to be given, and 
 application for the above reward was to be made, to William Carwardine, 
 Holmer, near Hereford. Two persons were tried for the mui-der at the 
 summer assizes, 1831, but acquitted. Soon after this, the plaintiff was 
 severely beaten and bruised by one Williams ; and on the 23d of 
 F. 1
 
 2 WILLIAMS V. CARWARDINE. [CHAP. I 
 
 August, 1831, believing she had not long to live, and to ease her 
 conscience, she made a voluntary statement, containing information which 
 led to the subsequent conviction of Williams. Upon this evidence it was 
 contended, that as the plaintiff was not induced by the reward promised 
 by the defendant, to give evidence, tlie law would not imply a contract 
 by the defendant, to pay her the 20^. The learned Judge was of opinion, 
 that the plaintifl', having given the information which led to the conviction 
 of the murderer, had performed the condition on which the 20^. was to 
 become payable, and was therefore entitled to recover it ; and he directed 
 the jury to find a verdict for the plaintiff, but desired them to find 
 specially whether she was induced to give the information by the ofler 
 of the promised reward. The jury found that she was not induced by the 
 offer of the reward, but by other motives. 
 
 Curivood now moved for a new trial. There was no promise to pay 
 the plaintiff the sum of 20^. That promise could only be enforced in 
 favor of persons who should have been induced to make disclosures by 
 the promise of reward. Here the jury have found that the plaintiff 
 was induced by other motives to give the information. They have, 
 therefore, negatived any contract on the pai-t of the defendant with the 
 plaintiti'. 
 
 Denman, C. J. The plaintiff, by having given information which led 
 to the conviction of the murderer of Walter Carwardine, has brought 
 lierself within the terms of the advertisement, and therefore is entitled 
 to recover. 
 
 LiTTLEDALE, J. The advertisement amounts to a general promise, 
 to give a sum of money to any person who shall give information which 
 might lead to the discovery of the offender. The plaintiff gave that 
 information. 
 
 Parke, J. There was a contract with any person who performed 
 the condition mentioned in the advertisement. 
 
 Patteson, J. I am of the same opinion. We cannot go into the 
 plaintiff's motives. Hide re/used. 
 
 PAYNE V. CAVE. 
 In the King's Bench, May 2, 1789. 
 
 [Reported in 3 Term Reports, 148.] 
 
 This was an action tried at the Sittings after last Term at Guildhall 
 before Lord Kenyon, wherein the declaration stated that the plaintiff, on 
 22d September, 1788, was possessed of a certain worm-tub, and a pewter
 
 CIIAP. l] PAYNE V. CAVE. 3 
 
 worm in the same, whicli were then and there about to be sold by public 
 auction by one S. M., the agent of the plaintiff in that behalf, the 
 conditions of which sale were to be the usual conditions of sale of goods 
 sold by auction, <&c., of all which premises the defendant afterwards, to 
 wit, (fee, had notice ; and thereupon the defendant, in consideration that 
 the plaintifi' at the special instance and request of the defendant, did then 
 and there undertake and promise to perform tlie conditions of the said 
 sale to be performed Iiy the plaintiff as seller, &c., undertook, and then 
 and there promised the plaintiff to perform the conditions of the sale 
 to be performed on the part of the buyer, (fee. And the plaintiff avers 
 that tlie conditions of sale hereinafter mentioned, are usual conditions 
 of sale of goods sold by auction, to wit, that tlie highest bidder should 
 be the purchaser, and should deposit live shillings in the pound, and 
 tliat if the lot purchased were not paid for and taken away in two days' 
 time, it should be put up again and resold, (fee. [stating all the condi- 
 tions]. It then stated that the defendant became the purchaser of the 
 lot in question for 40^. and was requested to pay the usual deposit, 
 which he refused, (fee. At the trial, the plaintiff's counsel opened the 
 case thus : The goods were put up in one lot at an auction ; there were 
 several bidders, of whom the defendant was the last, who bid 40^. ; the 
 auctioneer dwelt on the bidding, on whicli the defendant said, "Why 
 do you dwell '! you will not get more." The auctioneer said that he 
 was informed the worm weighed at least 1300 cwt., and was worth 
 more than iOl. ; the defendant then asked him whether he would warrant 
 it to weigh so much, and receiving an answer in the negative, he 
 then declared that he would not take it, and refused to pay for it. It 
 was resold on a subsequent day's sale for 30^. to the defendant, against 
 whom the action was brought for the difference. Lord Kenyon, being 
 of opinion on this statement of the case, that the defendant was at 
 liberty to withdraw his bidding any time before the hammer was knocked 
 down, nonsuited the plaintiff. 
 
 Walton now moved to set aside the nonsuit, on the ground that tlie 
 bidder was bound by the conditions of the sale to abide by his bidding, 
 and could not retract. By the act of bidding he acceded to those con- 
 ditions, one of which was, that the highest bidder should be the buyer. 
 The hammer is suspended, not for the benefit of the bidder, or to give 
 him an opportunity of repenting, but for the benefit of the seller ; in 
 the mean time, the person who bid last is a conditional purchaser, if 
 nobody bids more. Otherwise, it is in the power of any person to 
 injure the vendor, because all the former biddings are discharged by the 
 last ; and, as it happened in this very instance, the goods may thereby 
 ultimately be sold for less than the person who was last outbid would 
 have given for them. The case of Simon v. Moiivos', which was men- 
 tioned at the trial, does not apply. That turned on the Statute of Frauds. 
 
 1 3 Burr. 1921. 
 
 1—2
 
 4 SPENCER V. HARDI>fG. [CHAP. I 
 
 The Court tliought the nonsuit very proper. Tlie auctioneer is the 
 a;,'ont of tlie vendor, and the assent of botli parties is necessary to make 
 the contract binding ; that is signified on the part of the seller by 
 knocking down the hammer, which was not done here till the defendant 
 had retracted. An auction is not unaptly called locus pceniteiitice. Every 
 bidding is notliing more than an offer on one side, which is not binding 
 on either side till it is assented to. But according to what is now con- 
 tended for, one party would be bound by tlie ofier, and the other not, 
 which can never be allowed. liule refused. 
 
 SPENCER AND Others v. HARDING and Others. 
 In the Common Pleas, June 29, 1870. 
 
 [Repoiti'd in Law Kepurts, 5 Common Pleus, 561.] 
 
 The second count of the declaration stated that the defendants by 
 their agents issued to the plaintiffs and other persons engaged in the 
 wholesale trade, a circular in the words and figures following, that is to 
 say, "28, King Street, Cheapside, May 17th, 1869. We are instructed to 
 offer to the wholesale trade for sale by tender tlie stock in trade of Messrs. 
 G. Eilbeck & Co., of No. 1, Milk Street, amounting as per stock-book to 
 2503/. 13s. Id., and which will be sold at a discount in one lot. Payment 
 to be made in cash. The stock may be viewed on the premises, No. 1, 
 MUk Street, up to Thursday, the 20th instant, on which day, at 12 o'clock 
 at noon precisely, the tenders will be received and opened at our offices. 
 Should you tender and not attend the sale, please address to us sealed and 
 inclosed, 'Tender for Eilbeck's stock.' Stock -books may be had at our 
 offices on Tuesday morning. Honey, Humphreys, & Co. : " And the 
 defendants offered and undertook to sell the said stock to the highest 
 bidder for cash, and to receive and open the tenders delivered to them or 
 their agents in that behalf, according to the true intent and meaning of 
 the said circular : And the plaintiffs thereupon sent to the said agents of 
 the defendants a tender for the said goods, in accordance with the said 
 circular, and also attended the said sale at the time and place named in 
 the said circular: And the said tender of the plaintiffs was the highest 
 tender received by the defendants or their agents in that behalf : And the 
 plaintiffs were ready and willing to pay for the said goods according to the 
 true intent and meaning of the said circular: And all conditions were 
 performed, &c., to entitle the plaintiffs to have their said tender accepted 
 by the defendants, and to be declared the purchasers of the said goods 
 according to the true intent and meaning of the said circular; yet the 
 defendants refused to accept the said tender of the plaintiffs, and refused
 
 CHAP. l] SPENCER V. HARDING. 5 
 
 to sell the said goods to the plaintiffs, and refused to open the said tender 
 or proceed witli the sale of tlie said goods, in accordance with their said 
 offer and undertaking in that behalf, whereby the plaintiffs had been 
 deprived of profit, ifec. 
 
 Demurrer, on the ground that the count shewed no promise to accept 
 the plaintiffs' tender or sell them the goods. Joinder. 
 
 IIoll, in support of the demurrer. Although the declaration is some- 
 what ambiguous, it is evidently intended to raise the question whether one 
 who advertises for tenders for the purchase of goods thereby engages to 
 sell them to the highest bidder. The nearest analogous case is thai of an 
 advertisement for tenders for building. It has never been held or 
 suggested that the advertiser is bound to accept the lowe.st tender. 
 Suppose here there had been only one tender, would the defendants have 
 been bound to accept that? The advertisement clearly does not amount 
 to a contract ; it only invites offers. 
 
 Morgan Lloyd, contra. The words of the circular and the averments 
 in the declaration taken together, disclose a contract on the part of the 
 defendants to sell the goods to whoever should make the highest tender. 
 This is not like the case of tenders for a building. There, the acceptance 
 of the lowest tender is always subject to the architect's judgment as to the 
 character and capacity of the builder. Here, the offer is to sell for cash. 
 The allegation in the count may be sustained either by evidence of a direct 
 promise, or by evidence of the custom of the trade. 
 
 [WiLLES, J. All the averments are governed by the words, " according 
 to the true intent and meaning of the said circular." It therefore comes 
 round to the question, what is the true meaning of that document.] 
 
 The nearest analogy is that of advertisements offering rewards for 
 the discovery and conviction of an offender, of which one of the leading 
 instances is the case of Williams v. Carwardi7ie', where Littledale, J., 
 says : " The advertisement amounts to a general promise to give a sum of 
 money to any person who shall give information which might lead to the 
 discovery of the offender." 
 
 WiLLES, J. I am of opinion that the defendants are entitled to 
 judgment. The action is brought against persons who issued a circular 
 offering a stock for sale by tender, to be sold at a discount in one lot. 
 The plaintiffs sent in a tender which turned out to be the highest, but 
 which was not accepted. They now insist that the circular amounts to a 
 contract or promise to sell the goods to the highest bidder, that is, in this 
 case, to the person who should tender for them at the smallest rate of 
 discount ; and reliance is placed on the cases as to rewards offered for the 
 discovery of an offender. In those cases, however, there never was any 
 
 ' 4 B. A- Ad. 621, 623. And see Thatcher v. England, 3 C. B. 254.
 
 C SPENCER V. HARDING. [C'HAP. I 
 
 doubt that tlie advertisement amounted to a promise to pay the money to tlie 
 person who first gave information. The difficulty suggested was that it was 
 a contract with all the world. But that, of course, was soon overruled. It 
 was an offer to become liable to any person who before the offer should be 
 retracted sliould happen to be the person to fulfil the contract of which the 
 advertisement was an ofier or tender. That is not the sort of difficulty 
 which presents itself here. If the circular had gone on, " and we under- 
 take to sell to the highest bidder," the reward cases would have applied, 
 and there would have been a good contract in respect of the persons. But 
 the question is, whether tliere is here any offer to enter into a contract at 
 all, or, whether the circular amounts to anything more than a mere 
 proclamation that the defendants are ready to chaffer for the sale of the 
 goods, and to receive offers for the purchase of them. In advertisements 
 for tenders for buildings it is not usual to say that the contract will be 
 given to the lowest bidder, and it is not always that the contract is made 
 with the lowest bidder. Here there is a total absence of any words to 
 intimate that the highest bidder is to be the purchaser. It is a mere 
 attempt to ascertain wliether an offer can be obtained within such a 
 margin as the sellers are willing to adopt. 
 
 Keating and Montague Smith, JJ., concurred. 
 
 Judgment for the defendants. 
 
 HARRIS V. NIOKERSON. 
 In the Queen's Bench, April 25, 1873. 
 
 [Reported in Law Reports, 8 Queen's Bench, 286.] 
 Case on appeal from the City of London Court. 
 
 The following were the particulars of claim : This action is brouglit to 
 recover 21. 16s. Gd. for two days loss of time by the plaintifl', at the 
 special instance and request of the defendant, on the plaintiff attending at 
 a public sale by auction, advertised by the defendant in the London 
 newspapers to be held at the town of Bury St Edmunds, on the 14th 
 of August, 1872, for the disposal of certain goods and office fittings under 
 bills of sale, and on the faith of which the plaintiff duly attended, and was 
 ready to purchase in pursuance of such request and public notification 
 aforesaid ; but the defendant, in breach thereof, did suddenly and without 
 notice withdraw the said goods and office fittings from the sale, and by 
 which the plaintiff lost not only his two days time and railway fare, but 
 the additional expense of two days board and lodging. 
 
 Two days loss of time . . . . XI 1 
 
 Third-class railway fare . . .0146 
 
 Two days board and lodging . . .110 
 
 £■2 16 6
 
 CHAP. l] HARRIS V. NICKERSON. 7 
 
 At tlie hearing it was proved that the sale was advertised as stated by 
 the plaintiff, and catalogues circulated and distributed. A copy of tlio 
 catalogue was put in evidence, by which it appeared that "Under bills of 
 sale " certain brewing materials, plant, and office furniture, would be sold 
 by auction by Mr Nickerson (the defendant), at Bury St Edmunds, on 
 Monday, 12th of August, 1872, and following days. The conditions were 
 the usual conditions ; the first being "The liighest bidder to be tlie buyer." 
 
 It was also proved that the plaintiff had a commission to purchase at 
 the sale the " office furniture," advertised to be sold. 
 
 Tiie plaintiff went to Bury St Edmunds and attended the sale, and 
 purchased lots other than those described in the catalogue as " office 
 furniture." 
 
 The articles described as " office furniture " were not put up for sale, 
 but were withdrawn. 
 
 On these facts tlie Judge gave judgment for the plaintiff, but at the 
 request of the defendant, gave him leave to appeal. 
 
 If the Court was of opinion tliat the plaintiff was not entitled to 
 recover, the judgment was to be set aside and a nonsuit entered. 
 
 Macrae Moir, for the defendant, contended that it was clear that the 
 mere advertising of a sale did not amount to a contract with anybody who 
 attended the sale that any particular lot, or class of articles advertised, 
 would be put up for sale. He referred to Warloio v. Uarrismi ' ; and 
 Paijne V. Cave^. 
 
 [QuAiN, J. referred to Mainprice v. Westley'.'\ 
 
 Warton, for the plaintiff, contended that the advertisement of the sale 
 by tlie defendant was a contract by him with the plaintiff, who attended 
 the sale on the faith of it, that he would sell the property advertised 
 according to the conditions ; and the ^vithdrawal of the property after the 
 plaintiff had incurred expenses in consequence of the advertisement was a 
 breach of such contract. A reasonable notice of the withdrawal, at all 
 events, ought to have been given. He likened the case to that of an 
 advertisement of a reward, which, though general in its inception, becomes 
 a promise to the particular person who acts upon it before it has been 
 withdrawn*. He referred to Speticer v. Harding^. 
 
 Macrae Moir was not heard in reply. 
 
 Blackburn, J. I am of opinion that the judge was wrong. The 
 facts were that the defendant advertised bona fide that certain things 
 would be sold by auction on the days named, and on the third day a 
 certain class of things, viz., office furniture, without any previous notice of 
 their withdrawal, were not put up. The plaintiff says, inasmuch as I 
 
 M E. & E. 293, 300 ; 28 L. J. (Q.B.) 18 ; 29 L. .1. (Q.B.) 14. 
 
 ' 3 T. R. 148. 3 6 B. & S. 420 ; 34 L. J. (Q.B.) 229. 
 
 * See WiUiams v. Cawardine, 4 B. & Ad. 621. » Law Rep. 5 C. P. 561.
 
 8 HARRIS V. NICKERSON. [CHAP. I 
 
 confided in the defendant's advertisement, and came down to tlie auction 
 to buy the furniture (which it is found as a fact lie was commissioned to 
 buy) and have had no ojiportunity of buying, I am entitled to recover 
 damages from the defendant, on the ground that the advertisement 
 amounted to a contract by the defendant with anybody that should act 
 upon it, that all the things advertised would be actually put up for 
 sale, and that he would have an opportunity of bidding for them and 
 buying. This is certainly a startling proposition, and would be excessively 
 inconvenient if carried out. It amounts to saying that any one who 
 advertises a sale by publishing an advertisement becomes responsible to 
 everybody who attends the sale for his cab hire or travelling expenses. 
 As to the cases cited : in the case of Warloiv v. Harrison', the opinion of 
 the majority of the judges in the Exchequer Chamber appears to have 
 been that an action would lie for not knocking down the lot to the 
 liighest bona fide bidder "when the sale was advertised as without reserve ; 
 in such a case it may be that there is a contract to sell to the highest 
 bidder, and that if the owner bids there is a breach of the contract ; there 
 is very plausible ground at all events for saying, as the minority of the 
 Court thought, that the auctioneer warrants that he has power to sell 
 without reserve. In the present case, unless every declaration of intention 
 to do a thing creates a binding contract with those who act upon it, and 
 in all cases after advertising a sale the auctioneer must give notice of any 
 articles that are withdrawn, or be liable to an action, we cannot hold the 
 defendant liable. 
 
 QuAiN, J. I am of the same opinion. To uphold the judge's decision 
 it is necessary to go to the extent of saying that when an auctioneer 
 issues an advertisement of the sale of goods, if he withdraws any part of 
 them without notice, the persons attending may all maintain actions 
 against him. In the present case, it is to be observed that the plaintiflf 
 bought some other lots ; but it is said he had a commission to buy the 
 furniture, either the wliole or in part, and that therefore he has a right of 
 action against the defendant. Such a proposition seems to be destitute of 
 all authority ; and it would be introducing an extremely inconvenient 
 rule of law to say that an auctioneer is bound to give notice of the with- 
 drawal or to be held liable to everybody attending the sale. The case is 
 certainly of the first impression. When a sale is advertised as ■without 
 reserve, and a lot is put up and bid for, there is ground for saying, as 
 was said in Warlow v. Harrison^, that a contract is entered into between 
 the auctioneer and the highest bona fide bidder ; but that has no applica- 
 tion to the pi-esent case ; here the lots were never put up and no offer was 
 made by the plaintifl' nor promise made by the defendant, except by his 
 advertisement that certain goods would be sold. It is impossible to say 
 
 ' 1 E. & E. at pp. .314, 318 ; 29 L. J. (Q.B.) 14. 
 = 1 E. & E. at p. 314 ; 29 L. J. (Q.B.) 14.
 
 CHAP. l] WARLOW V. HARRISON. 9 
 
 that tliat is a contract with everybody attending the sale, and that the 
 auctioneer is to be liable for their expenses if any single article is with- 
 drawn. Spencer v. Harding', which was cited by the plaintitTs counsel, 
 as far as it goes, is a direct authority agaiiast his proposition. 
 
 Archibald, J. I am of the same opinion. Tliis is an attempt on the 
 part of the plaintifl" to make a mere declaration of intention a binding 
 contract. He has utterly failed to shew authority or reason for his 
 proposition. If a false and fraudulent representation had been made out, 
 it would have been quite another matter. But to say that a mere 
 advertisement that certain articles will be sold liy auction amounts to a 
 contract to indemnify all who attend, if the sale of any part of the 
 articles does not take place, is a proposition without authority or ground 
 for supporting it. 
 
 Judgment /or the defendant. 
 
 WARLOW V. HARRISON. 
 In the Queen's Bench, Nov. 2.5, 1858. 
 
 [Jicportcd in 1 Ellis and Ellis, 295, 309.] 
 
 The declaration stated that the defendant exercised and carried on the 
 trade and business of an auctioneer, and was retained and employed to 
 sell and dispose of, by public auction, divers horses : that he advertized 
 that tlie said intended sale by auction would take place on Thursday tlie 
 24th day of June, 1858, at No. 1 Cheapside, Birmingliam ; and that there 
 would be sold by auction (amongst other horses) a certain liorse, as 
 follows, that is to say, "the property of a gentleman, without reserve, 
 Janet Pride, a brown mare, without white, five years old, by lago out of 
 Slormy Petrel; for performances see Racing Caleiular." That the plaintiff 
 attended the said sale by auction, and became and was the highest Iiidder 
 for the said mare so advertized to be sold wthout reserve ; and that the 
 defendant became and was the agent of the plaintiff, to complete the 
 contract, on behalf of the plaintiff, for the purchase of the said mare, but 
 wholly omitted and refused so to do ; whereliy the plaintiff was deprived 
 of the benefit of the said contract, and unable to obtain the said mare, as 
 he otherwise would have done, and was put to and incurred divers 
 expenses. And he claimed 150^. 
 
 Pleas: 1. Not Guilty; 2. That the defendant was not the highest 
 bidder at the said sale as alleged ; 3. That the defendant did not become 
 the plaintifl's agent as alleged. 
 
 ' Law Txep. 5 C. P. 561,
 
 10 WARLOW V. HARRISON. [cHAP. I 
 
 On the trial, before Cockburii, C. J., at the last Warwick Assizes, the 
 facts appeared to be as follows. 
 
 The plaintiff was a captain in the Royal Artillery ; and tlie defendant 
 was a horse-dealer and auctioneer carrying on business in partnership with a 
 Mr. Bretlierton, under the firm of Bretlierton and Harrison, at No. 1 Cheap- 
 side, Birmingltam, where they have a repository for the sale of horses. In 
 June 1858 the defendant as such auctioneer as aforesaid, with his partner, 
 publiekly advertized a sale of horses, to take place by auction, at their 
 repository, on Thursday 24th June, and issued printed particulars of such 
 sale, wliich, so far as relates to this case, were as follows. 
 
 "The three following horses, the property of a gentleman, without 
 reserve ; in stall 23, Moire Antique ; stall 24, Janet Pride, a brown mare 
 without white, five years old, by lago out of Stormy Petrel ; for perfor- 
 mances see Racing Calendar ; stall 2.5, Captain Barclay " &c. 
 
 In consequence of these advertisements the plaintiff, on 23d June, sent 
 liis groom and Mr. Stanley, a veterinary surgeon, to the defendant's reposi- 
 tory, to examine and report to him respecting the horses so advertized for 
 sale there, who reported the mare as worth probably from 40^. to 601. : and, 
 on receiving Mr. Stanley's report of the mare Janet Pride, for which ex- 
 amination and report the plaintiflT paid Mr. Stanley his charge of 10s., the 
 plaintiff next day with one of his friends, attended at the sale by auction, 
 at the defendant's repository ; wliere, after the preceding lots had been 
 disposed of, the mare Janet Pride was put up for sale by the defendant as 
 auctioneer. And, after sevei'al biddings made for her, some being made on 
 behalf of the plaintiff by a friend of his, the mare went up to 59 guineas : 
 the plaintiff then bid GO guineas for lier ; and immediately there was a bid 
 made over him of 61 guineas, by Mr. Henderson, the owner of the mare. 
 The defendant, on the 61 guineas being so bid as aforesaid, nodded to the 
 plaintiff, to see if he would bid any more : but the plaintiff, having been 
 then informed that the owner of the mare had made the last bidding of 
 61 guineas, shook his head and refused to make any further bid ; and the 
 defendant thereupon knocked down the mare to Mr. Henderson, the owner, 
 for 61 guineas, and entered his name as purchaser in the sale book, which 
 had been prepared before the sale, and which contained the names of tlie 
 horses to be sold at the sale, and the names of the proprietors. The mare 
 was sent back to the stable's ; and defendant went on selling other lots. 
 The plaintiff went at once into the auctioneer's office. He there saw Mr. 
 Bretherton, defendant's partner, and Henderson the owner, and claimed the 
 mare, as the highest bona fide bidder for her, and as she had been adver- 
 tised in the printed bills for unreserved sale. In the course of the conver- 
 sation with Mr. Bretherton, Mr. Henderson said: "I bought her in; and 
 you shall not have her ; I gave one hundred and thirty pounds for the 
 mare ; and it is not likely I am going to sell her for sixty three." Tlie 
 same day, plaintiff tendered to the defendant the sum of 63 pounds in 
 sovereigns as and for the price of the mare, and demanded her ; the defen-
 
 CHAP. l] WARLOW V. HARRISON. 11 
 
 dant refused to receive the money or to deliver up the mare to the plaintiff, 
 stating, at the same time, that he had knocked lier down to tlie liighest 
 bidder, and lie could not interfere in the matter. He also said Jleuderson 
 was the highest bidder. There was evidence that certain printed conditions 
 of sale were posted about tlie defendant's repository where the sale took 
 place, and that it was tlie practice to read tlieiii before the sales there. A 
 copy of these conditions, so far as relates to this case, is as follows. 
 
 "Conditions of Sale. 
 
 "1. The highest bidder to be the buyer; and, if any dispute arise 
 between two or more bidders before the lot is returned into the stables, the 
 lot so disputed shall be put up again, or the auctioneer may declare the 
 purchaser." 
 
 " 3. The purchaser, being declared, must immediately give in his 
 name and address, with (if required) a deposit of 5s. in the pound on 
 account of his purcliase, and pay the remainder before such lot or lots are 
 delivered." 
 
 " 8. Any lot ordered for this sale, and sold by private contract by the 
 owner, or advertised without reserve and bought by the owner, to be 
 liable to the usual commission of 5 per cent." 
 
 A verdict was taken for tlie plaintifl'. Damages 51. 5s. ; and leave was 
 given to the plaintiff to amend the declaration if tlie Court should think 
 tit ; and to the defendant leave was given to move as after mentioned. 
 
 Mellor, in this term, obtained a rule to enter a verdict for defendant, 
 or a nonsuit, on the grounds : First, that no sucli duty as alleged devolved 
 upon the defendant under tlie circumstances of the case ; secondly, that 
 the defendant Avas not the agent of the plaintiff to complete the sale, not 
 being bound by any duty or contract so to do ; thirdly, that there was no 
 contract with the plaintiff in point of fact which it became the duty of the 
 defendant to complete ; fourthly, that, by the bidding of the owner of tlie 
 liorse of a larger sum than that bid by the plaintiff, any authority on the 
 part of the owner to sell the horse to the plaintiff was revoked ; fifthly, 
 that it was the duty of the plaintifl", if lie disputed the bid of the owner of 
 the horse, to have disputed such liiddiiig pui'suant to the conditions upon 
 which the sale was to be conducted. 
 
 On a former day in this term ', 
 
 Isaac Spooiier and Beasley shewed cause. First, tlie bidding by tlie 
 owner of the horse was, in law, fraudulent, and not a bidding at all ; 
 Bexioell v. Christie' ; and in Sugden's Practical Treatise on tlie Law of 
 Vendors and Purchasers, vol. l. p. 13 (11th ed.), this case is introduced by 
 
 1 November 21th. Before Lord Campbell C. J., Wiyhtman and Erie Js. 
 - 1 Cowp. 305.
 
 12 WARLOW V. HARRISON. [OHAP. I 
 
 a reference to Cicero's view of the immorality of employing a sham bidder', 
 and to Huber's doctrine that, if a vendor employ a puffer, he shall be 
 compelled to sell the estate to the highest bona iide bidder ^ The 
 plaintiff was tlierefore really the highest bidder. Bexwell v. Christie" 
 lias been much canvassed, especially in equity. It was there decided that 
 no action lay against an auctioneer, at the suit of the vendor who 
 employed him, for selling to the highest bidder, contrary to the directions 
 of the plaintiff, who had ordered the auctioneer not to sell at a price 
 below a sum privately named by the vendor to the auctioneer. The 
 vendor may, as it was there said, fairly set up the article at a price 
 named, or may give a notice that he means to bid once himself. If, in 
 the present case, after the owner had made the bidding, a third party had 
 bid still higher, had been declared purchaser, and had refused to complete 
 the purchase, the owner could not have compelled him to do so, the 
 liighest bidding having been produced by the fraudulent bidding of the 
 owner. That appears from Howard v. Castle*, where Bexwell v. Christie^, 
 was treated as a conclusive authority. Crowder v. Austin^ and Wheeler 
 V. Collier' are to the same effect : and in Thornett v. Haines'' the Court 
 of Exchequer decided that this was the law, at any rate, where more 
 than one puffer had been employed, or where, as here, the sale is 
 announced to be without reserve. The principle, that the bid of a puffer 
 does not prevent the previous highest bidder from being still the highest, 
 and that the bidding by the puffer is illegal, and precludes the vendor 
 from insisting on biddings enhanced by such practice, will be found 
 to have been acted upon in two Scotch cases. Grey v. Stewart" and 
 Anderson v. Stewart^. In the last mentioned case Bexwell v. Christie' 
 and Howard v. Castle* were cited. Lord Cottenham C, in Robinson 
 V. WalV, held that a sale, where the highest bidding was produced by 
 tlie employment of a party privately employed by the vendor, the sale 
 having been advertized as "without reserve," could not be enforced in 
 equity. Next, the auctioneer was, for the purpose of completing the 
 
 1 "Dolus autem malus simulatione, ut ait Aquillius, continetur. ToUendum est 
 igitur ex rebus contrabendis omne mendaoium : non licitatorem venditor, nee qui contra 
 se liceatur emptor, apponet." De Off. in. 15. 61. 
 
 - Pralectiones, lib. xviii. tit. 2. s. 7. "Hoc facile constabit, si venditor falsum 
 emptorem inde ab initio subornet, qui plus aliis offerat, at veris emptoribus praemium 
 maximas licitationis, vulgb Strmjclipelt, quo nil usitatius, intercipiat, dolo detecto, 
 venditorem teneri ad premium vero licitatori maximo prEestandum, quia hoc est contra 
 fidem conventionis perfectse, qua statutum est, ut maximo licitatori prsemium daretur." 
 
 3 1 CoNvp. 395. ■• 6 T. E. 642. 6 3 Biug. 368. 
 
 « Moo. & M. 123. ' 15 M. & W. 367. 
 
 ' Decisions of the Court of Session, from the beginning of February 1752, to the end 
 of the year 1756; p. 130 (7th August, 1753). 
 
 ^ Decisions of the First and Second Divisions of the Court of Session, from Novem- 
 ber 1814 to November 1815, p. 108 (December 16, 1814). 
 
 " 2 Phill. Rep. Ca. Ch. 372.
 
 CHAP. l] WARLOW V. HARRISON. 13 
 
 purchase, the agent of the plaintiff; and, that being so, it was his duty to 
 knock doAvii the article to the plaintiff, who was the highest legal hidder. 
 The auctioneer is, it is true, in the tirst instance tlie agent of the seller 
 who instructs him : but he contracts also a duty towards every one from 
 wliom he receives a bidding. [Lord Campbell C. J. When do you say that 
 agency begins ?] As soon as the bidding is made. In Jones v. Nanney ', 
 wliere an auctioneer attempted to recover, in alleged pursuance of the 
 conditions of sale, tlie auction duty from a bidder, to whom the article 
 had been knocked down, but whose name had not been entered in writing 
 by the auctioneer, and it was held that the action did not lie because the 
 conditions of sale made the duty payable by the purchaser, wliich the 
 defendant was not, Alexander C. B. said that the conditions of sale formed 
 the written contract between the parties. If an auctioneer improperly 
 rescind a contract, he is liable to the vendor as for breach of the duty 
 which he has contracted to perform; Nelson v. Aldridge'. [Lord 
 Campbell C. J. Your difficulty will be to shew such a contract between the 
 auctioneer and the bidder.] The language of Best J. there seems to apply 
 to both cases : "It was the duty of the auctioneer to sell and not to rescind, 
 to do, not to undo ; and the law would imply a contract on his part to 
 discharge his duty." Instructions given privately by the seller to the 
 auctioneer, interfering with the professed competition, are a fraud on the 
 public, and so is a compliance with such instructions. [Lord Campbell C. J. 
 A man who commits a breach of a public duty, whereby an individual is 
 damaged, is liable to an action at the suit of the individual : but it is 
 difficult to say that an auctioneer has a pubKc duty to perform, within the 
 meaning of that rule.] A sale by auction is not like other sales : a 
 material difference is made by the public announcement. This is what 
 makes the auctioneer the agent of the bidder. [Lord Campbell C. J. You 
 say that the auctioneer, in consideration of a person bidding, undertakes 
 to make him the purchaser if the bid is the highest.] That is so. The 
 bidder, after the hammer is down, cannot retract his bidding, though his 
 name has not been entered : he may retract before the hammer is down ; 
 which is all that Payne v. Cave' shews, though some remarks of the 
 Court are reported in that case the accuracy of which may be questionable. 
 In Emmerson v. Ueelis* it was laid down that the auctioneer is the 
 agent of the buyer, and that the authority is conferred liy the buyer 
 bidding aloud. That decision was acted upon in White v. Proctor''. 
 And in Kemeys v. Proctor^ specific performance was decreed against a 
 purchaser, on the gi'ound that the auctioneer had written down his name, 
 and was his agent : there Grant M. E. decided in conformity with the 
 decisions before mentioned, though indeed, it seems, reluctantly. The 
 
 ' 13 Price, 76 ; S. C. M'CIel. 25. = 2 Stark. 435. 
 
 3 3 T. E. 148. •• 2 Taiin. 38. » 4 Tann. 209. 
 
 « 3 V. & B. 57.
 
 14 WARLOW V. HARRISON. [CHAP. I 
 
 same doctrine was explicitly laid down by Bailey J. in Kenwortluj v. 
 SchoJieW. Bucknuister v. Harrop'' and Hinde v. Whitehoiise' are also 
 recognitions of it. In the Earl of Glengal v. Barnard* Lord Lanrjdah 
 M. R. appears to assent to it, on the ground of the peculiar " nature of 
 the proceeding by auction." In his judgment reference is made to 
 Stansfield v. Johnson'' and Walker v. Gonstahle", cases in whicli the 
 doctrine was held not to apply to the sale of lands (so as to satisfy sec. 4 
 of the Statute of Frauds, 29 G. 2. c. 3), but which are now not considered 
 to be law. It has been suggested that the auctioneer's authority as agent 
 was revoked by tlie o\vner himself bidding ; but there is notliing to 
 support such a doctrine. \WiyJdman J. The revocation, if it was one, 
 did not take place till after the plaintiff had made his bidding.] Lastly, 
 on the evidence, there is ground for believing that the defendant knew 
 that the highest bidding was made on behalf of the owner himself. 
 
 Mellor and Field, contra. It is not necessary, on behalf of the present 
 defendant, to dispute the proposition that, on the facts of this case, the 
 vendee might have resisted any attempt by the vendor to enforce the sale, 
 supposing the vendee had bidden a higher price than that bidden by the 
 vendor. In Sugden's Concise and Practical Treatise of the Law of Vendors 
 and Purchasers of Estates, pp. 8, 9 (ed. 1857), most of the cases cited for 
 the plaintiff are collected ; but they are there brought forward for the 
 purpose only of that question. And tliis is all that the decisions on tlie 
 subject of puffing prove ; they shew that a bidder, whose bid has been 
 produced by puffing, cannot be held to his bid. But here the question is 
 whether the auctioneer can be made liable to the bidder whom he has not 
 declared purchaser. The argument on the other side assumes that the 
 bidding by the owner took place in pursuance of an agreement between 
 the owner and the auctioneer : whereas it does not appear that the auc- 
 tioneer knew that the o^vner was a bidder at all. Nor is it true, as a 
 general proposition, that the auctioneer is, ex vi termini, agent for both 
 parties : that depends upon the facts of tlie particular case ; per Lord 
 Denman C. J. in Bartlett v. PurnelV. [Lord Gampbell C. J. Clearly 
 the auctioneer is the agent of the vendor ; and he is the agent 
 of tlie vendee at least for the purpose of taking down the name at the 
 l)idding.] His agency to the vendor is created by tlie direction which he 
 receives to sell according to the instructions given to him : and, when the 
 bidder makes a bid, that is an authority to knock the article down to the 
 bidder : after which the auctioneer, in writing down the bidder's name, no 
 doubt acts as agent to both parties, so as to satisfy the Statute of Frauds. 
 But the auctioneer does not become the agent to tlie auctioneer by the 
 mere bidding : only, if he accepts and acts upon the authority by knocking 
 
 1 2 B. & C. W5. 2 13 Ves. 456. 3 7 East, 558. 
 
 * 1 Keen, 769. 788. = 1 Esp. 101. 
 
 « 1 B. A- P. 306. S. C. at N. P., 2 Esp. 659. ' 4 A. & E. 792.
 
 CHAP. l] WARLOW V. HARRISON. 15 
 
 down the article and writing the name, he then is agent. But, before such 
 
 acceptance, he has not contracted with tlie bidder to act as agent : that, 
 liowever, is tlie proposition necessary to support tlie allegation in the 
 declaration. The mere ofi'er to sell, or the mere offer to buy, constitutes no 
 contract. Suppose a bid for il. and then another bid for 51., at which the 
 article is knocked down, but which turns out to be improper : is that a 
 sale for the 4/. 1 The time at which the agency arises is detined by Sir 
 James Mansfiekls explanation of the auctioneer's authority, in Eminersoti 
 V. HeelisK "By what authority does he write down the purchaser's name? 
 By the authority of the purchaser. These persons bid, and announce their 
 biddings, loudly and particularly enough to be heard by the auctioneer. 
 For what purpose do they do this ? That he may WTite down tlieir names 
 opposite to the lots ; therefore he writes the name by the authority of the 
 purcliaser, and he is an agent for the purchaser." The bidder might have 
 constituted, as his agent, another pei'son, independent of the auctioneer, as, 
 in ISird v. Boidter', the auctioneer's clerk. In the case of brokers' notes, 
 the broker has the authority of both vendor and vendee, of the one to sell 
 and of the other to buy. Bexwell v. Christie^ shews merely that the 
 owner cannot sue the auctioneer for disobeying legal instructions. Payne 
 V. Cave'* shews that, till the hammer is down, the contract between the 
 o\vner and the bidder is not complete : how then can there be, before that, 
 a contract between the bidder and the auctioneer % So the authority of a 
 broker to insure may be revoked at any time before the policy is subscribed ; 
 Warwick v. Slade^. So a parol contract of sale of goods for a sum 
 exceeding 10^. may be revoked at any time before there is a signed written 
 memorandum ; Taylor v. Wakefield'^. And the general law of Englarul 
 is that an offer may be retracted before it is accepted ; Roviledije v. Grant '. 
 And this shews that, if the bid of the owner here invalidated the transac- 
 tion, tliere was a revocation of the authority before the contract was 
 completed. And, if the auctioneer had afterwards professed to sell, it 
 would not have passed the property. Is the auctioneer agent for every 
 person in the saleroom before a bid has been made 1 [Erie J. It has been 
 held that, where a party offers publickly a reward for any one who will do 
 a particular act, and somebody does the act in consequence, the party 
 offering the reward has contracted with him who does the act.] That seems 
 to have been decided in Williams v. Carwardine", a case wliich was 
 much discussed in Gerhard v. Bates", where the Court said tliat sucli 
 cases were "somewliat anomalous." 
 
 Cur. adv. vidt. 
 
 Lord Campbell C. J., now delivered the judgment of the court. 
 
 1 2 Taun. 48. - iB.& Ad. 443. 3 i Cowp. 395. 
 
 « 3 T. R. 148. = 3 Campb. 127. 5 6 E. & B. 765. 
 
 " 4 Bing. 653. 8 4 B. & Ad. G21. 
 
 " 2 E. & B. 476. See Denton v. Great Northern liaiUcay Company, 5 E. & B. SCO.
 
 16 WARLOW V. HARRISON. [CHAP. I 
 
 In this case, wliieli was very learnedly and al]ly argued before us 
 yesterday, we feel bound to give judgment for the defendant, on the short 
 ground tliat the plaintifl's allegations as to the agency of the defendant 
 and the duty of the defendant to complete the contract on behalf of the 
 plaintiff are not suljstantiated. 
 
 The plaintiff's counsel argued that, as soon as the plaintiff had bid for 
 the mare, the defendant, as auctioneer, became his agent to complete the 
 contract for the purchase, and that the defendant was guilty of a breach 
 of duty in failing to do so. This ingenious reasoning rests entirely upon 
 the decision that, if, after an article put up to be sold by auction is knocked 
 do^vn to the highest bidder, the auctioneer, at his request, signs a memor- 
 andum of the agreement to purchase, this is a sufficient memorandum of 
 the agreement to bind the purchaser. But the auctioneer is the agent of 
 the purchaser for this purpose only ; and he becomes so only when there is 
 a contract of sale by the acceptance of the bidding, which is usually 
 declared when the hammer is knocked down. Then the purchaser, or his 
 representative, lieing present, authorizes the auctioneer to sign the memor- 
 andum. But, till the hammer goes down, the auctioneer is exclusively the 
 agent of the vendor. Mr. Spooner contended that from the commencement 
 of a sale by auction the auctioneer is in the situation of a broker or 
 middleman between the vendor and the purchasers, as the common agent 
 of both ; that he is the agent of the bidder to receive the bidding ; that the 
 bidder is a conditional purchaser ; that, where the sale by the conditions 
 is without reserve, the bidder is absolutely the purchaser unless there be a 
 bona tide higher bidding ; and that the auctioneer, in consideration of the 
 bidding liy which commission will come to him, promises the highest bidder 
 to knock down the article to him, and to do all that is necessary to com- 
 plete the sale. But this reasoning is wholly at variance with the case of 
 Payne v. Cave^, which has been considered good law for nearly seventy 
 years. That case decided that a bidding at an auction, instead of being a 
 conditional purchase, is a mere offer ; that the auctioneer is the agent of 
 the vendor ; that the assent of both parties is necessary to the contract ; 
 that the assent is signified by knocking down the hammer ; and that, till 
 then, either party may retract. This is quite inconsistent with the notion 
 of a conditional purchase by a bidding, and with the notion of there being 
 any personal promise by the auctioneer to the bidder that the bidding of 
 an intending purchaser shall absolutely be accepted by the vendor. The 
 vendor himself and the bidder being respectively free till the hammer is 
 knocked down, the auctioneer cannot possibly be previously bound. At 
 this auction, the mare never was knocked down to the plaintiff; and the 
 relation of principal and agent between liim and the defendant never had 
 commenced. 
 
 We are not called upon to say whether there is any or what remedy on 
 
 ' 3 T. E. 148.
 
 CHAP. l] WARLOW V. HARRISON. 17 
 
 tho conditions of s.ilo against the vendor wlio violates the condition that 
 the article shall be bona, fide sold without reserve : but we are clear that 
 the bidder has no remedy against the auctioneer, whose authority to 
 accept the offer of the bidder has been determined by the vendor before 
 the hammer has been knocked down. 
 
 We are therefore relieved from the necessity of commenting upon any 
 other of tlie numerous authorities cited on both sides : and we must make 
 absolute the rule which gives the plaintitl' the clioicc of a nonsuit or of a 
 verdict being entered for the defendant. 
 
 Nonsuit entered. 
 
 WARLOW V. HARRISON. 
 In the Exchequer Ciiambeb, Nov. 26, 1859. 
 
 The plaintiff appealed against the above decision. 
 
 The case was argued in Easter Vacation, 1859', and Trinity Vacation, 
 1859=. 
 
 Macmday for the appellant (plaintiff below). There was in this case a 
 breacli of duty by the auctioneer, giving to the plaintiff a right of action. 
 The sale was "without reserve:" under such circumstances, unless public 
 notice is given, a liidding by the owner is fraudulent ; Thornett v. Uaines', 
 Robinson v. Wall^. The principle that the owner is not to mislead the 
 public in this respect was laid down in Bexwell v. Christie'^. It has been 
 suggested that the bidding by the owner was a countermand of the autho- 
 rity to sell ; but the defendant did not so treat it ; he treated it as an 
 ordinary bidding. According to Bexwell v. Christie^ the auctioneer 
 might, after the bidding by the owner, have sold to the plaintiff on his first 
 bidding: how then can the auctioneer's authority have been countermanded? 
 \_3Iartin B. Supposing your general principle true, was not the proper 
 remedy here an action for deceit ?] There is a contract between tho auc- 
 tioneer and the bidder. [Martin B. Does the auctioneer do more than 
 say that the owner has directed him to sell without reserve 1] He professes 
 to have adopted those directions. [Martin B. Why could not the owner 
 stop the sale 1] He might do so, but not by such a trick as tliis. There 
 can be no dispute but that, if the article is once knocked down to a bona 
 fide bidder, the auctioneer is his agent. But, when the sale is " without 
 reserve," the agency commences at the bidding, which gives the bidder a 
 
 1 May 14th. Before Willes and Byles Js., and Martin, Bramwell and Watson Bs. 
 
 2 June 20th. Before the same Judges. Williams J. was also present on this day, 
 when the conclusion of the argument for the defendant and the reply for tho plaiutiU' 
 were heard. 
 
 = 15 M. & W. 3G7. •> 2 Thill. Rep. Ca. Ch. 372. ■> 1 Cowp. 395. 
 
 F. 2
 
 18 WARLOW V. HARRISON. [CHAP. I 
 
 right till devested by a higlier bona fide bidder. The auctioneer is thus, 
 .successively, the agent of every bidder, conditionally upon there being no 
 higher bona fide bidding. [^Martin B. The case does not shew that the 
 defendant knew that it was the owner who was bidding : how is he then to 
 blame 1] The Court below relied upon Paijiie v. Cave\ But there it was 
 not part of the conditions of sale tluit the bidding should be "without 
 reserve : " and the bidder had therefore a discretion to withdraw his bid- 
 ding at any time before the hammer was down : had the sale been "without 
 reserve " lie would have been liound by his bidding. The consideration on 
 which the auctioneer enters into the contract is the increase of commission 
 which will accrue to him from each successive bidding. 
 
 Field, contra. The declaration alleges that the defendant was retained 
 and employed to sell ; that is, by the owner : and then it alleges tliat the 
 defendant became the agent of the plaintifi", the bidder, to complete the 
 sale. On that agency the declaration, which complains of a breach of 
 duty, is founded. But at what time did such agency commence 1 All that 
 the defendant has done, in tlie way of undertaking on his part, is to publish 
 an announcement that he is employed by the owner to sell. That this created 
 no contract with the plaintiff is plain from Payne, v. Cave^ and Cooke v. 
 Oxley'. In Chitty's Treatise on the Law of Contracts, p. 9, (ed. 6), it is 
 said : " In order, then, that a simple contract may be binding, there must 
 first be a definitive promise by the party charged, accepted by the person 
 claiming the benefit of such promise." Now, according to Payne v. Cave^, 
 there was in this case no such acceptance, nothing has passed since the 
 offer of the plaintiff. \Byles J. May it not be said that the advertisement 
 of the defendant amounted to a promise that he would act in compliance 
 with the terms of the advertisement towards any one who also acted on those 
 terms?] Jo7ies v. Nanney^ shews that here the plaintifi" would not have 
 been liable to the defendant : and, according to Warwick v. Slade*, nothing 
 had passed which made the authority given by the owner to the defendant 
 irrevocable. Farmer v. Robinson^ shews the same. [Willes J. Has it 
 not been decided that, where a carrier has advertised that his carriage "will 
 start at a certain time, he is, in the event of the carriage starting too late, 
 liable to every one who acts on the faith of the advertisement T\ The case 
 alluded to seems to be Denton v. Great Northern Railway Company'^. But 
 the complaint there was that the train of the defendants did not fall in 
 with another train, as promised by the time table. And it appears tliat there 
 the plaintifi' had actually commenced his journey by the defendants' train ; 
 and he therefore must have taken a ticket and paid the money ; the con- 
 tract was therefore complete. The doctrine that, in general, any one who 
 makes a general offer contracts personally with each individual who accepts 
 
 1 3 T. R. 148. 2 3 X. E. 653. 
 
 s 13 Price, 76 ; S. C. M'Lel. 25. * 3 Campb. 127. 
 
 » Note to Ileijman v. AVufc, 2 Campb. 339. « 5 E. * B. 860.
 
 CHAP. l] WARLOW V. HARRISON'. 19 
 
 it can scarcely be relied upon after the remarks of tlie Court in Gerhard v. 
 JJates'. The words in the advertisement "without reserve" cannot affect 
 tlie question as suggested on the other side. Those words miglit have dis- 
 quaUtied the owner from availing himself, directly or indirectly, of his own 
 bid: but how can they make the auctioneer the agent of the bidder? 
 [Macaulai/. According to the terms of tlie reservation, the declaration 
 may be altered], but it has not been altered ; and the breach complained 
 of is the neglect of duty as agent. Nor, if the action were shaped as an 
 action for fraud, would the evidence support it : there is no proof that the 
 defendant knew that the owner was bidding, the defendant therefore 
 cannot be made in any way liable for the evasion of the terms of the 
 proposed sale. This distinction becomes very important with reference to 
 Gerhard v. Bates'. After the owner had bid, nothing which the defendant 
 could have done would have bound the property. \_Bijles J. No doubt an 
 offer may be retracted before it is accepted : but, if you offer to sell 
 "without reserve," is not the bidding an acceptance?] It cannot be so; 
 for it is undoubted law that the bidder may retract before tlie hammer is 
 down. Till then, the auctioneer cannot bind the bidder according to the 
 rule in Simon v. Mlotivos' and other authorities already cited. 
 
 Macaulay, in reply. According to the facts stated, the defendant 
 must be liable in some form or other. \Willeg J. On this appeal, we are 
 to see what part of the declaration is not proved. Bramwell B. The 
 defendant says that it is not proved that he was plaintiff's agent. 
 Wllles J. Perhaps it may be said that this is only alleged as a conclusion 
 in law. Watson B. On the view, the traverse taken is not material.] 
 " If the facts stated raise the duty, then the express allegation of the duty 
 is unnecessary ; if they do not then the express allegation will not supply 
 the defect : " per Lord Campbell C. J. in Seymour v. Maddox^. As to 
 the effect of the words " without reserve," Robinson v. Wall* and 
 Thornett v. Haines^ are conclusive. The notion of a revocation of 
 authority, after a bidding made upon an announcement that the sale was 
 to be without reserve, cannot be supported. [Bramwell B. If there were 
 such a revocation, perhaps the auctioneer should have said : " Stop : tlie 
 sale is not without reserve ; my authority is revoked."] 
 
 Martin B. The Court will take time for considering : in the mean- 
 while, the parties may consider whether the proper end of this case would 
 not be a stet processus. 
 
 Cur. adv. mdt. 
 
 Martin B. now delivered the judgment of the Court. 
 This is to be understood as the judgment of iny brothers Byles and 
 Watson and myself. 
 
 1 2 E. & B. 47G. 2 3 Bur. 1921. ^ 16 Q. B. 326. 329, 330. 
 
 •* 2 Phill. Rep. Ca. Ch. 372. = 15 m. & W. 367. 
 
 9 3
 
 20 WARLOW V. HAEKISON. [CHAP. I 
 
 This is an appeal from a judgment of tlie Court of Queen's Bencl), 
 reported in 28 Law Journal, Q. B. 18. The material facts stated in the 
 case are these. 
 
 The defendant and a Mr. Bretherton are auctioneers in partnership at 
 Birmimjhani, where they have a repository for the sale of horses. In 
 June 1S58, they advertized a sale by auction at the repository. The 
 advertisement contained, amongst other enti'ies of horses to be sold, as 
 follows. "Tlie three following horses, the property of a gentlemen, 
 without reserve." One of these was a mare called Janet Pride. The 
 plaintiff attended the sale, and bid sixty guineas for her : another person 
 immediately bid sixty-one guineas ; this person was Mr. Henderson, the 
 owner of the mare. The plaintiff, having been informed that the last 
 bidder was the owner, declined to bid further ; and thereupon the 
 defendant knocked down the mare to Mr. Henderson for sixty-one guineas, 
 and entered his name as purchaser in the sale book, which contained the 
 names of the animals to be sold at the sale, and the names of the 
 proprietors. The plaintiff went at once into the auctioneer's office and 
 saw Mr. BrelJierton and Mr. Henderson, and claimed the mare from Mr. 
 Bretherton as being the highest bona fide bidder, the mare being advertised 
 to be sold without reserve. Mr. Henderson said, " I bought her in ; and 
 you shall not have her : I gave one hundred and thirty pounds for the 
 mare ; and it is not likely I am going to sell her for sixty-three." On the 
 same day, the plaintiff tendered to the defendant sixty-three pounds, in 
 sovereigns, as the price of the mare, and demanded her. The defendant 
 refused to receive the money or deliver the mare, stating that he had 
 knocked her do^vn to the highest bidder, and he could not interfere in the 
 matter. There was evidence that the plaintiff had notice that the 
 following were amongst the conditions of sale. 
 
 "1. The highest bidder to be the buyer; and, if any dispute arise 
 between two or more bidders before the lot is returned into the stables, 
 the lot so disputed shall be put up again, or the auctioneer may declare 
 the purchaser." 
 
 " 3. The purchaser, being declared, must immediately give in his 
 name and address, with (if required) a deposit of five shillings in the 
 pound on account of his purchase, and pay the remainder before such lot 
 or lots are delivered." 
 
 "8. Any lot ordered for this sale, and sold by private contract by 
 the owner, or advertised without reserve and bought by the owner, to be 
 liable to the usual commission of 5 per cent." 
 
 At the trial a verdict was entered for the plaintiff for £5. 5s. damages ; 
 and leave was given to amend the declaration if the Court should think 
 tit. Leave was also given to the defendant to move to enter a nonsuit. 
 The Court of Queen's Bench made a rule absolute to enter a nonsuit ; and 
 this is an appeal from their judgment. 
 
 Upon the pleadings as they stand we think tho judgment of the Court
 
 CHAP. l] WARLOW V. HARRISON. 21 
 
 of Queen's Biuicli is right, iiiul tliat the defendant is entitled to the 
 verdict upon the issue on the third plea : but there is power given to the 
 Court to amend ; and it has been held that this power extends to the 
 Court of Appeal ; and we think we ought to exercise it largely to carry 
 out the object of tlie Common Law Procedure Acts 1852, and 1854, viz. 
 to determine the real question in controversy between the parties in the 
 existing suit. Upon the facts of the case, it seems to us that the plaintiff 
 is entitled to recover. In a sale by auction there are three parties, viz. 
 the owner of the property to be sold, the auctioneer, and the portion of 
 the public who attend to bid, which of course includes the highest bidder. 
 In this, as in most cases of sales by auction, the owner's name was not 
 disclosed : he was a concealed principal. The name of the auctioneers, of 
 whom the defendant was one, alone was published ; and the sale was 
 announced by them to be "without reserve." This, according to all the 
 cases both at law and equity, means that neither the vendor nor any 
 person in his behalf shall bid at the auction, and that the property shall 
 be sold to the highest bidder, whether the sum bid be equivalent to 
 the real value or not; Tlwrmtt v. Haines'. We cannot distinguish the 
 case of an auctioneer putting up property for sale upon such a condition 
 from the case of the loser of property offering a reward, or that of a 
 railway company publishing a time table stating the times when, and the 
 places to which, the trains run. It has been decided that the person 
 giving the information advertised for, or a passenger taking a ticket, may 
 sue as upon a contract with him ; Benton v. Great Northern Railway 
 Company^. Upon the same principle, it seems to us that the highest 
 bona tide bidder at an auction may sue the auctioneer as upon a contract 
 that the sale shall be without reserve. We think the auctioneer who puts 
 the property up for sale upon such a condition pledges himself that the 
 sale shall be without reserve ; or, in other words, contracts that it shall be 
 so ; and that this contract is made with the highest bona fide bidder ; and 
 in case of a breach of it, that he has a right of action against the 
 auctioneer. The case is not at all affected by the 17th section of the 
 Statute of Frauds, which relates only to direct sales, and not to contracts 
 relating to or connected with them. Neither does it seem to us material 
 whether the owner, or person on his behalf, bid with the knowledge or 
 privity of the auctioneer. We think that the auctioneer has contracted 
 that the sale shall be without reserve ; and that the contract is broken 
 upon a bid being made by or on behalf of the owner, whether it be 
 during the time when the property is under the hammer, or it be the last 
 bid upon which the article is knocked down ; in either case the sale is not 
 " without reserve," and the contract of the auctioneer is broken. We 
 entertain no doubt that the owner may, at any time before the contract is 
 legally complete, interfere and revoke the auctioneer's authority : but he 
 
 1 15 M. & W. 307. = 5 E. cfc B. mO.
 
 22 "WARLOW V. HAURISON. [CHAP. I 
 
 does so at his peril ; and, if the auctioneer has contracted any liability in 
 consequence of his employment and the subsequent revocation or conduct 
 of the owner, he is entitled to be indemnified. 
 
 We do not tliink the conditions of sale stated in the case (assuming the 
 plaintiff to be taken to have had notice of them) affect it. As to the first, 
 Mr Henderson could not be the buyer : he was the owner ; and, if it were 
 material, there is ample evidence that the defendant knew him to be so : 
 indeed we think he ought not to have taken his bid, but to have refused 
 it ; stating, as his reason, that the sale was " without reserve." We feel 
 inclined to differ with the view of the Court of Queen's Bench in this, 
 that we rather think the bid of Mr Henderson was not a revocation of the 
 defendant's authority as auctioneer. The third condition has nothing to do 
 with the case ; and the eighth only provides that, if, upon a sale without 
 reserve, the owner act contrary to the conditions, he must pay the usual 
 commission to the auctioneer. For these reasons, if the plaintiff think fit 
 to amend his declaration, he, in our opinion, is entitled to the judgment of 
 the Court. 
 
 WiLLES J. My brother Bramwell and myself do not dissent from the 
 judgment which has been pronounced. But we prefer to rest our decision, 
 as to the amendment, upon the ground that the defendant undertook to 
 have, and yet there was evidence that he had not, authority to sell without 
 reserve. The result is the same. 
 
 Judgment of Court of Queen's Bench to be affirmed ; unless the parties 
 elect to enter a stet processus, or the plaintiff amend his declaration ; in 
 which latter case, a new trial to be had. 
 
 Field applied for costs in case the amendment were made. 
 
 Per Cimam. The circumstances are such that we think the plaintiff 
 ought to be at liberty to amend without costs. If the defendant desires it, 
 we will make them generally costs in the cause. 
 
 In re AGRA AND MASTERMAN'S BANK. 
 Ex parte ASIATIC BANKING CORPORATION. 
 
 In Chancery, Jan. 31 and Feb. 11, 1867. 
 
 [Reported in Law Reports, 2 Clmncenj Appeals, 391.] 
 
 This was an appeal by the oflScial liquidator of the Asiatic Bankimj 
 Corporation from an order of Vice-Chancellor Wood, refusing to admit a 
 claim made against the estate of the Aejra and Mastermans Bank, Limited, 
 in respect of certain bills of exchange. 
 
 On the 31st of October, 1865, Agra and Masterman's Bank sa,\o to
 
 CHAP, i] E,i: parte Asiatic banking cori-oration. 23 
 
 Dickson, Tafham, d: Co., a, letter of credit, addressed to them, whifh was 
 in the following terms : — 
 
 "No. 394. You are hereby authorized to draw upon this hank at six 
 months' sight, to the extent of £15,000 sterling, and such drafts I under- 
 take duly to honour on presentation. This credit will remain in force for 
 twelve months from this date, and parties negotiating bills under it are 
 requested to indorse particulars on the back hereof. The bills must specify 
 tliat they are drawn under credit. No. 394, of the 31st of October, 1865." 
 
 In May, 18G6, Dickso7i, Tatliam, & Co., drew bills on the Agra and 
 Masierman's Bank, under this letter, for X6000, and sold them to the 
 agent of the Asiatic Banking Corporation. The agent, on taking the bills, 
 duly indorsed particulars on the letter of credit. The Agra and Master- 
 man^s Bank stopped payment before the bills were presented for acceptance. 
 Both banks were now in course of being wound up, and the official 
 liquidator of the Asiatic Banking Corporation, who were still the holders 
 of the bills, carried in a claim for their amount under the winding-up of 
 the Agra and MaMerman's Bank. This was opposed on the ground that 
 Dickson, Tatliam, <fc Co. wei'e indebted to Agra and 3fasterman's Bank to 
 an amount exceeding what was due on the bills. 
 
 Mr G. M. Giffard, Q.C., Mr Hannen, and Mr Kekeunch, for the 
 Appellant : — 
 
 We contend that the Appellant is entitled to prove on three grounds ; — 
 
 1. That Dickson, Tatliam, d- Co., were agents authorized by Ag7-a and 
 Masterman's Bank to promise that the latter would accept the bills. 
 
 2. That the letter she^vn to the person advancmg money constituted, 
 when money was advanced on the faith of it, a contract by the bank to 
 accept the bills. 3. That it would be a fraud on the part of the bank to 
 deny their liability to pay the bills after they had been taken on the faith 
 of the letter. 
 
 In Lord MansfieMs time, a promise like this would have constituted 
 an acceptance ; but we admit that even before the Mercantile Law Amend- 
 ment A ct ', it could not, according to the later decisions, have that effect : 
 Bank of Ireland v. Archer^. We admit, therefore, that the persons who 
 took the bills could not have sued upon them as bills ; but the promise to 
 accept a bill gives a right of action to the person to whom it was made ; 
 Mason Y. Hunt^; /Story on Bills of Exchange*; Russell y. Wiggin^ ; Mareh- 
 ington v. Vernon". Now, looking at the purpose of the letter, it is clear 
 that it was intended to be shewn by Tatham di Co., as proof of their 
 authority to pledge Agra and Masterman's Bank to accept the bills. 
 Tatham & Co. were thus constituted agents to make a promise on behalf 
 of the bank : Pickard v. Sears''. Again, an open offer of this kind consti- 
 
 1 19 & 20 Vict. c. 97, s. 6. - 11 M. iS: W. 383. » 1 Doug. 29G. 
 
 •• §§ 459, 461. ^ 2 Story's Eep. 213. « 1 B. & P. 101, n. 
 
 ' 6 Ad. & E. 469.
 
 24 //( re agka and masterman's bank. [chap, i 
 
 tutes a contract with anyone wlio complies with its terms : WUllavis v. 
 Carwardine^ ; Tluitcher v. England^. Thus, in Benton w. Great Norlltern 
 Railway Compamj', a promise to issue tickets by a particular train was 
 held to give a riglit of action to a person who came to the station to get 
 one and found that none were issued. Tlie principle of these cases was 
 affii-med in Warlotv v. Harrison*. It has been urged that there is no 
 privity, but that is a fallacy arising from looking to the time of writing 
 the oiler, not to the time of the other person acting on it. In Banh of 
 Ireland v. Archer^, the point was raised on the pleadings, but the e\'idence 
 did not support them, for there was only a private letter to the agent. 
 Here, what we rely upon is that the letter was written for the pui-pose of 
 being shewn. In PiUans v. Va7i Mierop", the money was advanced with- 
 out any authority from the Defendants, and not on their credit ; and the 
 subsequent promise to accept was contended to be a mere nudum pactujn. 
 Yet the promise was held to give a right of action. The point incidentally 
 'arose in Scoii v. Pilkington^, but the case went olf on another ground, and 
 the decision does not aflect us ; there is only an obiter dictum of Blackburn, 
 J., which makes against us. There is, therefore, a right of action in the 
 person who takes a bill on the faith of a letter like this. Whether such a 
 1 ight of action can pass with the bill if it be negotiated may be a question, 
 l)ut if it cannot, an equitable right is created which will pass ; and it 
 would be against conscience for the bank to set up the state of the account 
 between them and Taiham Jh Co. as a defence against repaying moneys 
 advanced on the faith of a letter like this : Jeffries v. Agra and Master- 
 man's Bank", has really no bearing on the present case. 
 
 Mr Dickinson, Q.C., and Mr Roxburgh, Q.C. for the official liquidator 
 of Agra and Masterman's Bank : — 
 
 There is no agency ; the letter of credit was given for the benefit of 
 Tnthaiii ct Co., who were not acting on behalf of the hank ; and the letter 
 would accomplish its object of benefiting them, without attributing to it 
 the force now contended for. In Pickard v. Sears", the principal was 
 standing by ; there is nothing of the same kind here. Pillans v. Van 
 J/ierop'^, and Mason v. Bunt'", were decisions by Lord Mansfield, who 
 lield that a promise to accept a future bill of exchange amounted to an 
 acceptance of it, so that the authority of those cases on the present 
 (juestion, however great his Lordship's authority may be on other points, 
 is but small. Johnson v. Collings" shews that a promise to accept a future 
 bill is no acceptance, and that is all the letter amounts to in the present 
 case. Bank of Ireland v. Archer'' is in our favour; and the American 
 cases, which Mr Justice Storg admits to be opposed to the last-named case, 
 
 ' 4 B. & Ad. G21. « 3 C. B. 251. 3 5 E. & B. 860. 
 
 ■* 1 E. <S E. 2'J5, 30'J. 5 11 M. & W. 383. « 3 Burr. 1GG3. 
 
 7 2 B. & S. 11. ^ Law Hep. 2 Eq. G7i. » 6 Ad. & E. 4G9. 
 
 =" 1 Dull". 20G. " 1 East 08.
 
 CHAP. l] Ex parte ASIATIC BANKING CORPORATION. 25 
 
 are not binding here. How can the indorsees be entitled to claim against 
 tlie bank 1 they cannot be supposed to have seen tlie letter of credit, or to 
 have advanced money on the faith of it. The case distinguishable is from 
 Denton v. Great Northern Railway Company^, and the cases of that class, 
 in this — that there the advertisement was issued to all the world ; here 
 the letter was addressed to an individual firm. 
 
 [The Lord Justice Cairns : — Was not the letter intended to be 
 shewn ■?] 
 
 No doubt ; but then we get upon the question of equitable, not legal 
 liability. The transferees become equitable assignees of the benefit of a 
 contract between the baidi and Tathain & Co., and must take, subject to 
 the same equities as their assignors, i. e., subject to the state of account 
 between the bank and Tatham & Co. No doubt the liability to these 
 equities miglit be excluded by apt words, but there is nothing of tlie kind 
 in the instrument. Jeff ryes v. Ayra and Master man's Bank' supports the 
 claim to set off. Shewing the letter is no more than telling the persons 
 who take bills that the baidi has promised Talliam S Co. to accept them ; 
 the liberty to communicate this promise cannot extend its eflect, which is 
 only to give Tatham tt Co. a right of action if it is broken. 
 
 Feb. 11. Sir G. J. Turner, L.J. :— 
 
 I have had the opportunity of considering this case, with my learned 
 brother, since the conclusion of the argument, and we do not tliink it 
 necessary to trouble the counsel for the Appellant to reply. 
 
 The question turns upon the effect of the letter of the 31st of October, 
 1865, by the Jyra Bank to Dickson, Tatham, & Co. [His Lordship read 
 the letter, and continued.] Now, whatever may be the effect of that letter 
 at law, whether there would be a right of action or not, it seems to me to 
 give the persons who took and paid for bills on the faith of it a plain 
 right in equity to compel the Agra Bank to accept and pay the bills. The 
 letter was written in a double form ; the first part of it contains the 
 authority which is given to Dickson, Tatliam, & Co. to draw tlie bills ; the 
 second part is evidently, though not in tenns, yet in substance, addressed 
 to the persons who are to negotiate the bills. It is plain that this letter 
 was given by the lank with a view to its being shewn to persons who were 
 to negotiate the bills, and to make advances upon the faith of the letter ; 
 and the last passage contains these words : " Parties negotiating bills 
 under it are requested to indorse particulars on the back hereof." It is 
 plain that this part of the letter is in truth addressed to the person by 
 whom the bills were to be negotiated. The whole effect of the letter is, 
 that the Ayra Bank held out to the persons negotiating the bills a promise 
 that it would pay the bills ; and it would be impossible, according to my 
 
 ' o E. & C. 8G0. = Law Ecp. 2 Eq. (i71.
 
 20 In re AGRA AND MASTERMAN's EANK. [CHAP. t 
 
 ^■iew of tlie doctrines of Coiirts of equity, to allow the Ijank, after liaving 
 sent that letter into the world, addressed to the persons who were to 
 nejrotiate the hills, and so lield out to them that it would be answerable 
 for their payment, to say that because there was a debt due to it from the 
 persons to wliom it had given the letter of credit, therefore it would not 
 pay the bills. Apart, therefore, from any question as to how the case may 
 stand at law, I think that there clearly is a perfectly good equity to 
 sustain a bill filed by any one of the persons by whom bills drawn under 
 the letter of credit had been negotiated, to compel the Agra Bank to 
 accept and pay these bills which were taken and paid for upon the faith of 
 the statement which was made in the letter. 
 
 Sir H. M. Cairns, L.J. : — 
 
 It is not disputed in this case that the letter of credit of the 31st of 
 October, 1865, from the Agra and Masterman's Bank, to Dickson, Tathani, 
 <£• Co., constituted a contract between those parties, based upon a sufficient 
 consideration, moving from Dickson, Talham, & Co. to the bank ; or that 
 the Asiatic Banking Corporation, when they took and discounted or paid 
 for the bills upon which a claim is now made, had notice, and took the 
 bills on the faith, of this letter ; or that the bills were drawn in the form 
 prescribed by the letter. But it is contended that the letter, being in 
 form addressed to Dickson, Tatliam, & Co., constituted a contract with no 
 one but them ; and that this contract, even if assignable in equity, could 
 not be assigned otherwise than subject to all equities between Dickson, 
 Tatham, & Co. and the Agra and Masterman's Bank, and that Dickson, 
 Tatham, <£• Co., are indebted to that bank in an amount exceeding the 
 bills. 
 
 The letter of the 31st of October, 1865, is in form addressed to Dickson, 
 Tatham, ti; Co., but it is evident that it is written to Dickson, Tatham, d; 
 Co., in order that it may be shewn by them to those who were to take the 
 bills drawn on the Agra and Mastermati's Bank ; that it is intended by the 
 writers to be used as an inducement to make persons take those bills ; and 
 that the biUs were to be taken by such persons "under" the letter, that is, 
 upon the faith and under the protection and security of the letter. It is a 
 general invitation issued by the Agra and Masterman's Bank, through 
 Dickson, Tathani, d; Co., to all persons to whom the letter may be shewn, 
 to take bills drawn by Dickson, Tatham, d; Co. on the Agra a7id Master- 
 man's Bank, with reference to the letter, and to alter their position 
 by paying for such bills, with an assurance that, if they or any of them 
 will do so, the Agra and Masiermaii's Bank will accept such bills on 
 presentation. 
 
 If it be necessary to determine the question of the legal liability of the 
 Agra and Masterman's Bank, I am of opinion that, upon the ofl'er in this 
 letter being accepted and acted on by the Asiatic Banking Corporatioit, 
 there was constituted a valid and binding legal contract against the Agra
 
 ciiAi'. i] Ex parte Asiatic banking cokpoiution. 27 
 
 and Mastermmi's Bank, in favour of the Asiatic Banking Corporation. 
 Tlie cases as to the offer of rewards, of whicli the case of Williams v. Car- 
 wardijie' is an example, followed by the somewhat analogous cases of 
 Denton v. Great Northern Railway Company', Warlow v. Harrison^, and 
 Scott V. Pilkington ■*, appear to me to be sufficient authority to shew that 
 there may be privity of contract in such a case ; and if the view be 
 adopted which appears to have been taken in tlie American Courts, tliat 
 the holder of the letter of credit is the agent of the writer for the purpose 
 of entering into such a contract, the same result would Ije arrived at by a 
 different road. 
 
 But assuming the contract to have been at law a contract with 
 Dickson, Tatham, & Co., and with no other, it is clear that the contract 
 was in equity assignable, and that Dickson, Tatham, <£• Co., must be taken 
 to have assigned (if assignment were needed) to the Asiatic Banking Cor- 
 poration, and to have been by the writers of the letter intended to assign 
 to them, the engagement in the letter providing for the acceptance of the 
 bills. Generally speaking, a chose in action assignable only in equity 
 must be assigned subject to the equities existing between the original 
 parties to the contract ; but this is a rule which must yield when it 
 appears from the nature or terms of the contract that it must have been 
 intended to be assignable free from and unaffected by such equities. The 
 essence of this letter is, as it seems to me, that the person taking bills on 
 the faith of it is to have the absolute benefit of the undertaking in the 
 letter, and to have it in order to obtain the acceptance of the bills which 
 are negotiable instruments payable according to their tenor, and without 
 reference to any collateral or cross claims. Unless this is done, the letter 
 is useless ; Dickson, Tatham, & Co., obtain no benefit from it ; the takers 
 of the bills obtain no protection under it. In this view of the case, the 
 Asiatic Banking Corporatioti are, in my opinion, assignees of the contract 
 with Dickson, Tatham, & Co., free from any equities between Dickson, 
 Tatham, <£• Co., and the Agra and Masterman!s Bank. 
 
 I tliink the claim should be allowed, and the Asiatic Banking Corpora- 
 tion, or their liquidators, should have their costs here and in the Court 
 below out of the estate of the Agra and Masterman^s Bank. 
 
 1 4 B. & Ad. 621. 2 5 E. & B. 860. ^ 1 E. & E. 295, 309. 
 
 ■> 2 B. & S. 11.
 
 28 TAYLOR V. LAIUD. [OIIAP. I 
 
 TAYLOR V. LAIRD. 
 
 In the Exchequer, June 10, 1856. 
 
 [KepoHeil in 25 Laio Journal Rrports Ex. 329.] 
 
 Action upon a contract to employ the plaintiff and to pay him 50Z. a 
 month, as master of a ship for a certain voyage ; with a common count for 
 work and labour. 
 
 Plea, to the first count, inter alia, that the plaintiff did not act 
 according to the agreement in the command of the vessel during the 
 voyage, but made default in so doing ; to the second count, nunquam 
 indebitatus. 
 
 At the trial, at Guildliall, before the Lord Chief Baron, at tlie Sittings 
 after Hilary term, it appeared that the defendant had written to the 
 plaintiff, offering to engage him for the command of a steamer destined 
 for an exploring and trading voyage up the River Niger, paying him at 
 the rate of 50^. a month, commencing from a fixed date, tlie 1st of 
 December 1854, and also 20^. per cent, on tlie proceeds of tlie trade. The 
 plaintiff replied in writing that he accepted the proposal, " to be paid 50^. 
 a month, and 20^. per cent, on the net proceeds of the trade," and on the 
 other terms mentioned in the defendant's letter. The plaintiff received 
 50^. a month for several months before the voyage commenced, and after- 
 wards proceeded in command of the vessel. In the course of the voyage 
 up the river, and before the trading part of it commenced, disputes 
 liaving arisen between the plaintiff and one of the gentlemen sent out witli 
 him to conduct tlie exploring and trading business of the expedition, the 
 plaintiff, in August (tlie ninth month from his retainer), relinquished to 
 that gentleman "the navigation and social management" of the vessel; 
 and from that time until the end of the voyage it did not appear tliat lie 
 took any actual pait in the navigation or general management, although 
 he professed at the time his readiness to lend every assistance, and co- 
 operated in the trading. When the vessel on her return reached Fernando 
 Po, he discharged a native crew who had been engaged for the navigation 
 of tlie Niger, landed different portions of the cargo, engaged otlier sailors 
 to complete the crew, ordered repairs to be done to tlie ship, and came 
 home in her to Limerick. There was no evidence that he had actually 
 conducted the navigation of the vessel to Limerick ; but when she reached 
 that port he received a letter from the defendant (who had previously 
 heard of the plaintiffs relinquishment of the actual command), desiring 
 him to discharge the crew, &o. The plaintiff had received seven months' 
 salary, and had entered on the ninth montli when he gave up the com- 
 mand. There was evidence of an amount of ti-ade, on which tlie 20^. per 
 cent, commission would come to 172Z.
 
 CHAP. l] TAYLOR V. LAIRD. 29 
 
 The jury found the plea to the second count for the defcnd.-mt, hoinj; 
 of opinion that the phiintiff had wrongfully abandoned the command of 
 the vessel ; but on the indehilatus count they found for the jjlaintifl' for 
 672^., i.e. 500^. for ten months' salary, at 50?. a month, and 172?. for 
 commission on the net pi'oduce of the sale, at 20?. per cent. 
 
 The Court, last term, granted a rule nisi to enter a verdict for the 
 defendant or for a new trial, on the grounds that the verdict was 
 unsupported by the facts, or that the amount was excessive. Against 
 this rule — 
 
 Sir F. Thesiger, Montague Smith, and Maude, on a fonner day in 
 Easter term, shewed cause. — First, the plaintiff was entitled to recover 
 upon the special contract under the indebitatus count, at all events for one 
 month's salary, 50?. ; or, secondly, he was entitled to recover under that 
 count upon a new contract, either implied in law or of which there was 
 evidence in fact ; thirdly, the verdict was not so excessive in amount as 
 that it ought to be set aside solely on tliat ground. Admitting that the 
 plaintiff broke his contract by relinquishing the actual navigation of 
 the vessel, it by no means follows that he thereby lost all rights under the 
 contract ; and, at all events, he was clearly entitled to recover the 50?. for 
 tiie last of the months he had completed before he relinquished the 
 navigation ; and he could recover that as a debt under the common count, 
 even if he could not recover on the same count another month's salary in 
 lieu of notice — Hartley v. Ilarman'. 
 
 [Pollock, C.B. — -Clearly he could not recover anytliing under the 
 indebitatus count for the broken month — Goodman v. Pocock^. And even 
 as to the last of the months he had completed before he had relinquished 
 the navigation, there is this difficulty in the way of his recovering : is not 
 the contract entire? There was no stipulation tliat the salary should be 
 payable monthly.] 
 
 That, it is submitted, was implied in the plaintiff's acceptance of the 
 offer, "to be paid 50?. a month." 
 
 [Pollock, C.B. — Still, even if the payments were to be monthly, there 
 would be a difficulty in holding that a right of action accrued at the end 
 of each month for the month's salary. The plaintiff received several 
 months' salary before the voyage commenced at all, and before the 
 exploring part of it began. Now, it cannot be doubted that the considera- 
 tion for so large a salary as 50?. a month was mainly the navigation of 
 the vessel during the voyage ; and yet if the argument on the part of 
 the plaintiff is correct, he could have refused going on the voyage at all, 
 and the defendant could not liave recovered liack the salary he had paid 
 him : but the plaintiff could have recovered it if it had not been paid.] 
 
 That might have been provided for in the contract. But another 
 
 1 11 Aa. & E. 798 ; s. c. 9 Law J. Eep. (n.s.) Q.E. 179. 
 - 15 Q.B. Rep. .571; ; s. c. 19 Law J. R. p. (n..s.) y.li. 110.
 
 80 TAYLOR V. LAIRD. [CHAP. I 
 
 (lifBculty, equally great, lies in the way of the argument on tlie part of tlie 
 defendant, viz. that unless each month's salary as it was earned con- 
 stituted a separate debt and cause of action, and supposing the contract, 
 in the strictest sense, to have been entire, so that nothing could have 
 been recovered under it until it had been entirely performed on tlie part of 
 the plaintiff, his executors could have recovered nothing if he liad died 
 during the last montli of the voyage. 
 
 [Pollock, C.B. — It might make a difference, that the non-completion 
 of the contract arose, not by his own default, but by the act of God.] 
 
 It is submitted that the distinction would not affect the principle as to 
 the entirety of the contract. And even if it would, and supposing that 
 the plaintiff had, either through loss of health, or even, as in the present 
 case, in consequence of disagreements, voluntarily given up the actual 
 navigation during the last month of the voyage, the argument for the 
 defendant, leading as it does to the conclusion that the plaintiff could have 
 recovered nothing, is not the less untenable, and tends to a manifest 
 absurdity and injustice which the parties could not have contemplated. 
 
 [Pollock, C.B. — But upon your construction tlie plaintiff might have 
 refused to go on the voyage at all, and then recovered four or five months' 
 salary as due before the voyage was to commence. Suppose an agricultural 
 labourer engaged for a year left his employer just at the beginning of 
 harvest-time, could he recover pro rata ?] 
 
 There the contract would be for a year, and would be in the strictest 
 sense entire. 
 
 [Pollock, C.B. — Suppose the wages were to be paid monthly, would 
 it make any differenced] 
 
 It would, it is conceived, make all the difference whether he was 
 retained at yearly wages or at so mucli a month, as in the present case. 
 The analogy between the case suggested and the present would be nearer 
 if it were supposed tliat the farm-servant engaged at a yearly salary had 
 completed a year's service. Could he not sue for the year's salary % 
 
 [Pollock, C.B. — There may be a difference between cases of retainer 
 simply at so much a month or a year for an indefinite period, as a 
 continuing kind of contract measured merely by time and terminable 
 by either party at certain notice, and a contract like the present for a 
 specific piece of work, as a certain voyage, the claim being for salary 
 alleged to have accrued before the main object of the contract was effected, 
 and before the most important part of the voyage began. Does not that 
 more resemble the case of the farm-servant retained on a yearly hiring and 
 leaving in the middle of the year, at harvest-time 1] 
 
 It is convinced that this is merely the ordinary case of a person 
 employed at a monthly salary, for the duration of the voyage was indefinite. 
 The cases in which tlie default of the party employed lias prevented him 
 from recovering are cases in which he has left during the period for which 
 the instalment or payment of salary became due, or for which the contract
 
 CHAP. l] TAYLOR V. LAIRD. 31 
 
 excluded the state of things which liad occurred, as conferring any right 
 to recover salary pro ratd. And in the present case it is submitted that 
 tliere is ng principle upon which the plaintiti' should be precluded from 
 recovering his salary for the month he had completed before he relinquished 
 the navigation. And, secondly, there is nothing to preclude his recovering 
 salary on the indebitatus count, by virtue of the special contract, for any 
 period for which the jury miglit think it due. Their finding, although it 
 establishes that the plaintiff had broken the contract, by no means 
 establishes that he had thereby put an end to it, e\'en as the measure 
 of remuneration for the service actually performed, nor does it establish 
 that he had altogether failed to perform the contract and render service 
 under it, of the extent of which they were the judges. It only appeared 
 that he had given up the actual " navigation and social management " of the 
 vessel, but though this would sustain their finding, it could not put an end 
 to the contract, for it did not involve an utter failure of consideration. Tlie 
 plaintiti' still remained in the vessel, ready to assist in the navigation and 
 management, and it appeared that he did actually take part in the man- 
 agement of it. It is as though he had, ostensibly, relinquished the ac- 
 tual management to another, retaining the ultimate controul. This may 
 have been strictly and technically a breach of the contract, Ijut no 
 substantial failure of performance, and so the jury may have intended by 
 their finding on the special count, which in that sense is not at all 
 inconsistent with their finding on the indebitatus count. 
 
 [Pollock, C.B. — There is a difficulty in considering a contract as 
 broken and yet as not broken.] 
 
 It may have been technically broken, but not substantially. 
 
 [Pollock, C.B. — Then, would the finding for the defendant on the 
 special count be sustainable 1 If so, surely the plaintiff cannot recover on 
 that count.] 
 
 In effect the plaintiff performed the contract, and can recover his salary 
 under it on the indebitatus count. 
 
 [Pollock, C.B. — If the plaintiff had said, I will not relinquish the 
 command, but I shall observe the advice and direction of A.B., he would 
 have been entitled to the verdict on the special count.] 
 
 In effect, that was what he did. Secondly, there was evidence from 
 which the jury were at liberty to infer a new contract to pay the plaintiff 
 for his services after his relinquishment of the navigation quantum meruit. 
 There were services certainly performed at Fernando Po, and the jury 
 were the judges of the value of the plaintiff's assistance on board the 
 vessel during the whole of the voyage. And the defendant, after hearing 
 that the plaintiff had relinquished the navigation, and knowing what he 
 had done, gave liim directions as to the discharging the cargo and the crew, 
 thereby recognising him as still in his service, either under the old 
 contract, or under a new one to pay him quantum 7neruit. 
 
 [BPvAMWELL, B. — The lueach of tlie original contract ii.xd taken jilacc,
 
 32 TAYLOR V. LAIRD. [CHAP. I 
 
 and the subsequent services, whatever they were, were done without tlio 
 request of the defendant. Moreover, he may liave believed that the 
 plaintiff was adequately remunerated for such services as he had actually 
 performed by his having received a free passage home. What evidence is 
 there of a new contract to pay for those services 1] 
 
 [Pollock, C.B. — Such evidence as you press of a recognition or 
 acceptance of sem-ices may be sufficient to shew an implied contract to pay 
 for them, if at the time the defendant had power to accept or refuse the 
 .services. But in this case it was not so. The defendant did not know of 
 the services you rely on until the return of the vessel, and it was then 
 something past, which would not imply — perhaps would not support — a 
 promise to pay for it.] 
 
 The defendant had the benefit of tlie plaintiffs services during the 
 voyage. 
 
 [Pollock, C.B. — Without liis knowledge or i-equest, setting aside tlie 
 special contract. Suppose I clean your property ^vithout your knowledge, 
 have I then a claim on you for payment 1 How can you help it 1 One 
 cleans another's shoes ; what can the other do but put them on t Is that 
 evidence of a contract to pay for the cleaning "i The benefit of the service 
 could not be rejected without refusing the property itself. So in the 
 present instance. The ship came home, say partly by the assistance of the 
 plaintiff : what could the defendant do but receive his ship back again '! 
 There was nothing in tliat to imply a contract to pay the defendant any- 
 thing.] 
 
 But there was more than tliat. The directions to the plaintift' to do 
 work after the return of the vessel were ex^dence of a recognition of the 
 plamtiff as being in the service of the defendant, and so of his past 
 assistance having been in such service. Thirdly, the amount of the verdict 
 was not so excessive as to warrant the Court in disturbing it. The jury 
 were the proper judges of the value of the services performed. 
 
 W. H. Watson, J. Wilde and Tomlinson, for the defendant. — The 
 contract was an entire and single contract, the mode of payment to be at 
 the rate of 50^., and is within the rule laid down in Cutter v. PowelV. 
 The right of the plaintiff to recover may be tested in this way. Suppose, 
 on arri\'ing at Fernando Po, he had refused to go any further, he would 
 then, if the contract is to be read as the plaintiff contends, have received 
 seven monthly payments, amounting to 350^. In that case the defendant 
 would have been entitled to recover it back as on a failure of consideration, 
 the object of the voyage being the ascent of the Niger. In Vlwrhoom v. 
 Clmpman' Parke, B., in his judgment, says, "To justify a claim for i^ro 
 ratd freight, there must be a voluntary acceptance of the goods at an 
 intermediate port, in such a mode as to raise a fair inference tliat the 
 further carriage of tlie goods was intentionally dispensed with." So here, 
 ' 6 Term Rep. 320 ; s. c. 2 Smith's Leading Cases, 1. 
 - 13 Jlee. & W. 230 ; s. c. 13 Law J. Rep. (n.s.) Exch. 384.
 
 CHAP. l] TAYLOR r. LAIRD. 33 
 
 if tlie defendant, being present, said, "1 do not require you to go on ;iny 
 further," the plaintiff would have been in a situation to claim for his 
 services pro rata ; but he was not there, and there was no agent but the 
 plaintiff liiniself, who did as he liked. The principle upon wliich the 
 present case is to be distinguished from ordinary cases of hired servants 
 paid by salary, monthly or quarterly, is, that where the service is homoge- 
 neous in character, so that the value of service for one month or quarter is 
 the same as tlie value of another, and tlie value of one is not less because 
 subsequent service may not be performed : there a distinct cause of action 
 may arise at the expiration of any month or quarter of actual service, for 
 a month or a quarter's salary ; but it is not so where the service is not 
 homogeneous, but is not only of very different value to the employer at 
 different periods, liut the value of tlie former part of the service is little or 
 nothing unless the latter part of the service is also rendered. It was so 
 in tliis case, for the essence of the consideration for the contract was the 
 exploring part of the voyage, and the plaintiff failed to render service at 
 that very part. It is not a case of imperfect performance or partial 
 failure of consideration, but of entire default and of total failure. The 
 service contracted for was not in fact rendered, viz. the service in the 
 exploring part of the voyage. Tliat was the gist of the consideration, and 
 failure in that was failure i>i toto. The monthly payments were merely 
 the measure of remuneration. It is as though an artist had been retained 
 to paint a picture to be paid for at 50^. a month during the time he should 
 be engaged upon it. In such a case surely the artist could not sue for any 
 money if lie stopped before he completed the picture. 
 
 [Bramwell, B. — Do you mean to contend that lie could not sue for 
 any money before he completed the picture 1^ 
 
 It is contended that he could not. 
 
 [Bramwell, B. — You must argue that in tiiat case and the present no 
 cause of action would accrue until tlie completion of the contract by the 
 execution of the picture or the conclusion of the voyage. Then, do you 
 say that, supposing the plaintiff in this case had died shortly before the 
 completion of the voyage, lie could recover nothing 1] 
 
 Not unless the voyage had been substantially performed, as, for 
 instance, if the ship had been out and had finislied the expedition and was 
 on its return home. But if the voyage had not been substantially com- 
 pleted, the plaintiffs representatives could not upon his death recover on 
 the contract. This, however, is a case not of death, but of wilful default. 
 And as, even entire, the contract is terminated by mutual consent, no 
 implied contract necessarily arises to remunerate the party quantum 
 meruit — Lamhurn v. CrudenK It is a question of fact, whetlier any sucli 
 new contract has arisen, and here there was no evidence of it. And, at 
 all events, the damages were excessive. 
 
 ' 2 Man. & G. 253 ; s. c. 10 Law J. lit-p. (n.s.) C.V. 121.
 
 34 TAYLOR V. LAIRD. [CHAP. I 
 
 [Per Curiam. — Clearly they were so : and on that ground alone there 
 would be a new trial, and the only question is as to whether tlie verdict 
 ouglit not to be for the defendant. As to that we will consider.] 
 
 Cur. adv. inilt. 
 
 Pollock, C.B. now delivered the judgment of the Court'. — We are of 
 opinion that the plaintiff is entitled to a verdict for 50?.^ on the first 
 count, upon the ground that the contract was for monthly payments of 
 50^., and tliat eight months liad elapsed and only seven had been paid for. 
 In the defendant's letter, indeed, to the plaintiff, it was written, " Your 
 pay to be at the rate of 50^. per month ; " and what would have been the 
 effect of those words had they been unqualified and unexplained by 
 anything else it is unnecessary for us to say : for, in the plaintiffs answer, 
 he uses the expression, " The pay to be 50?. per month." If this does not 
 differ from the defendant's letter, it shews what it meant ; if it does, it 
 was a new offer, approved and accepted by the defendant, and which is to 
 be considered as the basis of the contract, and thus it serves either to 
 supersede or to explain the original letter of the defendant. There " 50?. 
 per month " means each month, and gave a cause of action as each month 
 elapsed. And a right of action thus once vested could not be divested by 
 the plaintiffs deserting or abandoning the voyage. The words are plain, 
 and no mercantile man could doubt what they meant. Moreover, if this 
 construction were not given to it, the result would be, that if the plaintiff 
 had died or relinquished the command at any time before the end of the 
 voyage, nothing would have been payable. This could not have been 
 intended by the parties. It was said, indeed, that if the plaintiff's 
 construction were to be adopted, he might have relinquished the command 
 before the voyage began, and recovered his pay for the period previous to 
 its commencement. No doubt tliat consequence would follow. But con- 
 tracts should be construed as though they were made upon the supposition 
 tliat the parties would keep them, not break them, and on that supposition 
 the plaintiff's construction is reasonable ; the defendant's is not. And, 
 further, the pleadings on the other side appear to imply that the claim 
 could only be barred as to the period for which the months had not run. 
 As to the other question, we tliink there was some evidence to go to tlie 
 jury upon the part of the plaintiff, but that the damages should be, on the 
 special count, only nominal or next to nominal. If the plaintiff is 
 content, he may enter a verdict for 50?., otherwise there must be a new 
 trial. 
 
 Rule ab.iohite to reduce tlie verdict to 50?., otherivise for a tteic trial. 
 
 1 Pollock, C.B., Alderson, B., Martin, B. and Bramwell, B. 
 
 2 It had been proposed to the parties that the Court should say, if they deemed the 
 plaintiff entitled to so rauch, what damage he was entitled to (if any) on the special 
 count, and so avoid a new trial by entering a verdict.
 
 CHAP. l] FELTHOUSE V. BINDLEV. 35 
 
 FELTHOUSE v. BINDLEY. 
 In the Common Pleas, July 8, 1862. 
 
 [Reported in 11 Common Bench Reports, New Series, 8G9.] 
 
 This was an action for the conversion of a horse. Pleas, not guilty, 
 and not possessed. 
 
 The cause was tried before Keating, J., at the last Summer Assizes at 
 Stafford, when the following facts appeared in evidence : — The plaintiff 
 was a builder residing in London. The defendant was an auctioneer 
 residing at Tamworth. Towai'ds the close of the year 1860, John 
 Felthouse, a nephew of the plaintiff, being about to sell his farming stock 
 by auction, a conversation took place between the uncle and nephew 
 respecting the purchase by the former of a horse of the latter ; and, on the 
 1st of January, 1861, John Felthouse wrote to his uncle as follows : — 
 
 "Bangley, January 1st, 1861. 
 
 "Dear Sir, — I saw my father on Saturday. He told me that you 
 considered you had bought the horse for 30/. If so, you are labouring 
 under a mistake, for, 30 guineas was the price I put upon him, and you 
 never heard me say less. When you said you would have him, I considered 
 you were aware of the price, as I would not take less. 
 
 "John Felthouse." 
 
 The plaintiff on the following day replied as follows : — 
 
 "London, January 2nd, 1862. 
 
 " Dear Nephew, — Your price, I admit, was 30 guineas. I offered 30/., 
 — never offered more : and you said the horse was mine. However, as 
 there may be a mistake about him, I will spUt the difference, — 30/. 15s. — 
 I paying all expenses from Tamworth. You can send him at your conve- 
 nience, between now and the 25th of March. If I hear no more about 
 him, I consider the horse mine at 30/. 15s. " Paul Felthouse." 
 
 To this letter the nephew sent no reply ; and on the 25th of February 
 the sale took place, the horse in question being sold with the rest of the 
 stock, and fetcliing 33/., which sum was handed over to John Felthouse. 
 On the following day, the defendant (the auctioneer), being apprised of the 
 mistake, wrote to the plaintiff as follows : — 
 
 "Tamworth, February 2Gth, 1861. 
 
 " Dear Sir, — I am sorry I am obliged to acknowledge myself forgetful 
 in the matter of one of Mr John Felthouse's horses. Instructions were 
 given me to reserve the horse : but the lapse of time, and a multiplicity of 
 business pressing upon me, caused me to forget my previous promise. I 
 hope you will not experience any great inconvenience. I will do all I can 
 to get the horse again : but shall know on Saturday if I have succeeded. 
 
 " William 15indley." 
 .S— 2
 
 36 FELTHOUSE V. BINDLEY. [CHAR I 
 
 On the 27tli of February, John Feltliouse wrote to the plaintifl', as 
 follows : — 
 
 "Bangley, February 27th, 1861. 
 
 " My clear Uncle, — My sale took place on Monday last, and we were 
 veiy much annoyed in one instance. When Mr Bindley came over to 
 take an inventory of the stock, I said tliat horse (meaning tlie one T sold 
 to you) is sold. Mr B. said it would be better to put it in the sale, and 
 he would buy it in without any charge. Father stood by whilst he was 
 running it up, but had no idea but he was doing it for the good of the 
 sale, and according to his previous arrangement, until he heard him call 
 out Mr Glover. He then went to Mr B. and said that horse was not to 
 be sold. He exclaimed he had quite forgotten, but would see Mr Glover 
 and try to recover it, and says he will give 5?. to the gentleman if he will 
 give it up : but we fear it doubtful. I have kept one horse for my own 
 accommodation whilst we remain at Bangley : and, if you like to have it 
 for a few months, say five or six, you are welcome to it, free of any charge, 
 except the expenses of travelling : and if, at the end of that time, you like 
 to return him, you can ; or you can keep him, and let me know what you 
 think he is worth. I am very sorry that such has happened ; but hope we 
 shall make matters all right ; and would have given 51. rather than that 
 horse should have been given up. 
 
 "John Felthouse." 
 
 On the part of the defendant it was submitted that the letter of tlie 
 27th of February, 1861, was not admissilile in e\'idence. The learned judge, 
 however, overruled the objection. It was then submitted that the pro- 
 perty in the horse was not vested in the plaintiff at the time of the sale 
 by the defendant. 
 
 A verdict was found for the plaintiff, damages 331., leave being 
 reserved to the defendant to move to enter a nonsuit, if the court should 
 be of opinion that the objection was well founded. 
 
 Dowdeswell, in Michaelmas Tenn last, accordingly obtaiiied a i-ule nisi, 
 on the grounds that " sufficient title or possession of the horse, to maintain 
 the action, was not vested in the plaintifl' at the time of the wrong ; that 
 the letter of John Felthouse of the 27th of February, 1861, was not 
 admissible in e\-idence against the defendant : that, if it was admissible, 
 being after the sale of the horse by the defendant, it did not confer title on 
 the plaintifi'; and that there was at the time of the wrong no sufficient 
 memorandum in writing, or possession of the horse, or payment, to satisfy 
 the statute of frauds." Carter v. Tvussaint, 5 B. & Aid. 855, 1 D. <fe R. 
 515, and Bloxavi v. Smulers, 4 B. & C. 941, 7 D. & R. 396, were 
 referred to. 
 
 jfowell shewed cause. There was an ample note of the contract in 
 ■writing to satisfy the statute of frauds. When the parties met in 
 December, 1860, it was agreed between them that the plaintiff should 
 become the purchaser of tlie liorse. It is true, there was a slight mis-
 
 CHAP. l] FELTHOUSE V. BINDLEY. 37 
 
 understanding as to the price, tlie plaintiff conceiving he had bouglit it for 
 30/., the nepliew thinking lie had sold it for 30 guineas. On being 
 apprised by the nephew that he was under a mistake, the plaintitl" wrote 
 to him proposing to split the difference, concluding with saying, — " If I 
 hear no more about him, I consider the horse is mine at 30/. 15s." The 
 question is whether there has not been an acceptance of tliat offer by the 
 vendor, though nothing more passed between the uncle and nephew until 
 after the 25th of February, the day on which the sale by auction took 
 place. Could the plaintiff after liis letter of tlie 2nd of January have 
 refused to take the horse 1 It is true that letter was unanswered ; but it 
 was proved that the nephew afterwards spoke of the horse as being sold to 
 the plaintiff, and desired the auctioneer (the defendant) to keep it out of 
 the sale. Although written after the conversion, the letter of the 27th of 
 February was clearly evidence, and, coupled with the plaintiff's letter of 
 the 2nd of January, constituted a valid note in writing, even as between 
 the uncle and the nephew. [Keating, J. You were bound to shew a 
 binding contract for the sale of the horse before the 25th of February.] 
 The letter of the nephew of the 27th Ls an admission by him that he had 
 before that day assented to the bargain with the plaintiff. [Bi/les, J. 
 That only shews a binding contract on the 27th of February. What right 
 had the plaintiff to impose upon the nephew the trouble of writing a letter 
 to decline or to assent to the contract f\ It was not necessary that he 
 should assent to the contract by writing : it is enough to shew that he 
 assented to it. \Bijles, J. There was no delivery or acceptance : and 
 there could be no admission of delivery and acceptance. Willes, J. To 
 be of any avail, you must make out a valid contract between the uncle 
 and nephew prior to the 25th of February.] It was not necessary that tlie 
 assent to the terms of the plaintiff's letter should be in writing. In Dobell 
 V. ffutchinso7i, 3 Ad. i& E. 355, 5 N. & M. 251, it was held, that, where a 
 contract in writing, or note, exists which binds one party to a contract, 
 under the statute of frauds, any subsequent note in writing signed by the 
 otlier is sufficient to bind him, provided it either contains in itself the terms 
 of the contract, or refers to any contract which contains them. So, in 
 Smith V. JS^eale', it was held that a written proposal, containing the terms of 
 a proposed contract, signed by the defendant, and assented to by the plaintiff 
 by word of mouth, is a sufficient agreement wdthin the 4th section of the 
 statute of frauds. [ Willes, J. That was a very peculiar case. The plaintiff 
 had done all that she had agreed to do, and nothing remained to be done 
 but perfomianoe on the defendant's part. But, to say that transactions 
 between third parties are to be controlled or affected by an intemiediate 
 letter written by a person who is no party to the record, is a somewhat 
 startling proposition. Bi/les, J. I feel great difficulty in seeing how the 
 nephew's subsequent admission can be binding on the defendant, or even 
 evidence against him.] It is enough that the memorandum relied on to 
 
 I 2C.B., (N. s.) 67.
 
 38 FELTHOUSE V. BINDLEY. [CHAP. I 
 
 satisfy the statute of frauds is made at any time before action brought : 
 Bill V. Bament, 9 M. <fe W. 3G. 
 
 Montague Smith, Q.C., and Dowdeswell, in support of tlie rule. The 
 letter of the 27th of February was clearly inadmissible. The 17th section 
 of the 29 Car. 2, c. 3, provides that "no contract for the sale of any 
 goods, (fee, shall be allowed to be good, except some note or memorandum 
 in writing of the bargain be made and signed by the parties to be charged 
 by such contract," <fec. At the time the sale complained of here took 
 place, there clearly was no binding contract for the sale of the horse 
 by the nephew to the plaintiff. [ WiUes, J. Could the plaintiff have 
 insured the horse on the 25th of Feliruary X\ He could not : he had 
 no insurable interest. \Willes, J. As to third persons, one cannot 
 see any reason for giving a relation to the subsequent writing, though as 
 between the immediate parties one can.] Carter v. Toussaint, 5 B. ife Aid. 
 8.55, 1 D. & R. 515, is a far stronger case than the present. There, 
 a horse was sold by verbal contract, but no time was fixed for payment of 
 the price. The horse was to remain with the vendors for twenty days 
 without any charge to the vendee. At the expiration of that time, 
 the horse was sent to grass, by the direction of the vendee, and by 
 liis desire entered as the horse of one of the vendors ; and it was held that 
 there was no acceptance of the horse by the vendee, witliin the 29 Car. 2, 
 c. 3, s. 17. And see Smith's Mercantile Law, 4th edit. p. 468 et seq. 
 Here, the plaintiff had clearly no property in the horse on the 25th 
 of February, the day of the sale by the defendant. How, then, can 
 an admission ex post facto by a stranger affect the relative positions 
 of tlie parties to tliis record on that day % 
 
 WiLLES, J. I am of opinion that the rule to enter a nonsuit should be 
 made absolute. The horse in question had belonged to the plaintiff's 
 nephew, John Felthouse. In December, 1860, a conversation took place 
 between the plaintiff and his nephew relative to the purchase of the horse 
 by the former. The uncle seems to have thought that he had on that 
 occasion bought the horse for 30^., the nephew that he had sold it for 
 30 guineas : but there was clearly no complete bargain at that time. On 
 the 1st of January, 1861, the nephew writes, — "I saw my father on 
 Saturday. He told me that you considered you had bought the horse for 
 30Z. If so, you are labouring under a mistake, for, 30 guineas was 
 the price I put upon him, and you never heard me say less. When 
 you said you would have him, I considered you were aware of the price." 
 To this the uncle replies on the following day, — " Your price, I admit, was 
 30 guineas. I offered 30/. ; never offered more : and you said the horse 
 was mine. However, as there may be a mistake about him, I will split 
 the difference. If I hear no more about him, I consider the horse mine at 
 30^. 156-." It is clear that tliere was no complete bargain on tlie 2nd 
 of January : and it is also clear that the uncle had no right to impose upon 
 the nephew a sale of his horse for 30/. 15s. unless he chose to comply with
 
 CHAP. l] FELTHOUSE V. BINDLEY. 39 
 
 the condition of writing to repudiate the offer. The nephew might, no 
 doubt, Iiave bound his uncle to the bargain by writing to him : tlie uncle 
 might also have retracted his offer at any time before acceptance. It 
 stood an open offer : and so thiags remained until the 25th of February, 
 when the nephew was about to sell his farming stock by auction. The 
 horse in question being catalogued with the rest of the stock, the 
 auctioneer (the defendant) was told that it was already sold. It is clear, 
 therefore, that the nephew in his own mind intended his uncle to have the 
 horse at the price which he (the uncle) had named, — 30^. 15a'. : but he had 
 not communicated such his intention to his uncle, or done anything to 
 bind himself. Nothing, therefore, had been done to vest the property in 
 the horse in the plaintiff down to the 2.5th of February, when the horse 
 was sold by the defendant. It appears to me, that, independently of the 
 subsequent letters, there had been no bargain to pass the property in the 
 horse to the plaintiff, and therefore that he had no right to complain 
 of the sale. Then, what is the effect of the subsequent correspondence '\ 
 The letter of the auctioneer amounts to nothing. The more important 
 letter is that of the nephew, of the 27th of February, which is relied on as 
 shewing that he intended to accept and did accept the terms offered by his 
 uncle's letter of the 2nd of January. That letter, however, may be treated 
 either as an acceptance then for the first time made by him, or as a 
 memorandum of a bargain complete before the 25th of February, sufficient 
 within the Statute of Frauds. It seems to me that the former is the more 
 likely construction : and, if so, it is clear that the plaintiff cannot recover. 
 But, assuming that there had been a complete parol bargain before the 
 25th of February, and that the letter of the 27th was a mere expression of 
 the terms of that prior bargain, and not a bargain then for the first time 
 concluded, it would be directly contrary to tlie decision of the court 
 of Exchequer in Stockdale v. Dimlop, 6 M. <fe W. 221, to hold that that 
 acceptance had relation back to the previous offer so as to bind third 
 persons in respect of a dealing with the property by them in the interim. 
 In that case, Messrs. H. & Co., being the owners of two ships, called 
 the Antelope and the Maria, trading to the coast of Africa, and which 
 were then expected to arrive in Liverpool with cargos of palm-oil, agreed 
 verbally to sell the plaintiffs two hundred tons of oil, — one hundred tons 
 to arrive by the Antelope, and one hundred tons by the Maria. The 
 Antelope did afterwards arrive with one hundred tons of oil on board, 
 which were delivered by H. & Co. to the plaintiffs. Tiie Maria, having 
 fifty tons of oil on board, was loist by perils of the sea. The plaintiffs 
 having insured the oil on board the Maria, together with their expected 
 profits thereon, — it was held that they had no insurable interest, as 
 the contract they had entered into with H. & Co., being verbal only, was 
 incapable of being enforced. 
 
 Byles, J. I am of the same opinion, and have nothing to add to ^\•llat 
 has fallen from my Brother Willes.
 
 40 FELTHOUSE V. BINDLEY. [CHAP. I 
 
 Keating, J. I am of tlie same opinion. Had the question arisen as 
 between the uncle and tlie nepliew, tliere would probably have been some 
 difficulty. But, as between the uncle and tlie auctioneer, the only 
 question we have to consider, is, whether the horse was the property 
 of the plaintiff at the time of the sale on the 25th of February. It 
 seems to me that nothing had been done at that time to pass the property 
 out of the nephew and vest it in the plaintiff. A proposal had been 
 made, but there had before tliat day been no acceptance bmding the 
 nepliew. 
 
 WiLLES, J. Coats V. Chaplin, 3 Q. B. 483, 2 Gale & D. 552, is an 
 authority to shew that John Felthouse might have had a remedy against 
 the auctioneer. There, the traveller of Morrisons, tradesmen in London, 
 verbally ordered goods for Morrisons of the plaintiffs, manufacturers 
 at Paisley. No order was given as to sending the goods. The plaintiffs 
 gave them to the defendants, carriers, directed to Morrisons, to be taken 
 to them, and also sent an invoice by post to Morrisons, who received 
 it. The goods having been lost by the defendants' negligence, and not 
 delivered to Morrisons, — it was held that the defendants were liable 
 to the plaintiffs. 
 
 Jiule absolute. 
 
 ELIASON ET AL. v. HENSHAW. 
 
 Supreme Court of the United States, Feb. 17, 20, 1819. 
 
 [Reported in 4 Wkeaton, 225, 4 Curtis, 382.] 
 
 Error to the Circuit Court for the District of Columbia. 
 
 Jones and Key, for the plaintiff in error. 
 
 Swann, for the defendant in error. 
 
 Washington, J., delivered the opinion of the Court. 
 
 This is an action, brought by the defendant in error, to recover 
 damages for the non-performance of an agreement, alleged to have 
 been entered into by the plaintiffs in error, for the purchase of a quantity 
 of flour at a stipulated price. The evidence of this contract, given in 
 the court below, is stated in a bill of exceptions, and is to the following 
 effect : A letter from the plaintiffs to the defendant, dated the lOtli 
 of February, 1813, in which they say: "Captain Conn informs us that 
 you have a quantity of flour to dispose of. We are in the practice of 
 purchasing flour at all times in Georgetown, and will be glad to serve 
 you, either in receiving your flour in store when the markets are dull, and 
 disposing of it when the markets will answer to advantage, or we will
 
 CHAP. l] ELIASON V. HENSHAW. 41 
 
 purchase at market price wlien delivered ; if you are disposed to engage 
 two or three hundred barrels at present, we ^vill give you $9.50 per barrel, 
 deliverable the first water in Georgeto%vii, or any service we can. If you 
 sliould want an advance, please write us by mail, and will send you part 
 of the money in advance." In a postscript they add : " Please write 
 by return of wagon whether you accept our offer." Tliis letter was sent 
 from the house at which the writer then was, about two miles from 
 Harper's Ferry, to the defendant at his mill, at Mill Creek, distant about 
 twenty miles from Harper's Ferry, by a wagoner then employed by the 
 defendant to haul flour from his mill to Harper's Ferry, and then about to 
 return home with his wagon. He delivered the letter to the defendant 
 on the 14th of the same month, to which an answer, dated the succeedinir 
 day, was written by tlie defendant, addressed to the plaintiffs at George- 
 town, and despatched by a mail which left Mill Creek on the 19th, being 
 the first regular mail from that place to Georgetown. In this letter the 
 writer says: "Your favor of the 10th instant was handed me by 
 Mr Chenoweth last evening. I take the earliest opportunity to answer 
 it by post. Your proposal to engage 300 barrels of flour, delivered in 
 Georgetown by the first water, at $9.50 per barrel, I accept, and shall send 
 on the flour by the first boats tliat pass down from where my flour is 
 stored on the river ; as to any advance, will be unnecessary, — payment on 
 delivery is all that is required." 
 
 On the 25th of the same month, the plaintift's addressed to the 
 defendant an answer to the above, dated at Georgetown, in which they 
 acknowledge the receipt of it, and add : " Not having heard from you 
 before, had quite given over the expectation of getting your flour, more 
 particularly as we requested an answer by return of wagon the next day, 
 and as we did not get it, had bought all we wanted." 
 
 The wagoner, by whom the plaintifl"s first letter was sent, informed 
 them, when he received it, that he should not probably return to Harper's 
 Ferry, and he did not in fact return in the defendant's employ. The flour 
 was sent down to Georgetown some time in March, and the delivery of it 
 to the plaintifls was regularly tendered and refused. 
 
 Upon this evidence, the defendants in the Court below, the plaintifls 
 in error, moved that Court to instruct the jury, that, if they believed 
 the said evidence to be true as stated, tlie plaintiff in this action was 
 not entitled to recover the amount of the pi'ice of the 300 barrels of flour, 
 at the rate of $9.50 per barrel. The Court being divided in opinion, the 
 instruction prayed for was not given. 
 
 The question is, whether the Court below ought to have given the 
 instruction to the jury, as the same was prayed for. If they ought, 
 the judgment, which was in favor of the plaintifl' in that court, must be 
 reversed. 
 
 It is an undeniable principle of the law of contracts, that an offer of 
 a bargain by one person to another imposes no obligation upon the
 
 42 ELIASON V. HENSHAW. [CHAP. I 
 
 former, until it is accepted by tlie latter according to the terms in 
 which the oifer was made. Any qualification of or departure from 
 those terms invalidates the offer, unless the same be agreed to by the 
 person who made it. Until the terms of the agreement have received 
 the assent of both parties, the negotiation is open, and imposes no 
 obligation upon either. 
 
 In this case, the plaintiffs in error offered to purchase from the 
 defendant two or three hundred barrels of flour, to be delivered at 
 Georgetown by the first water, and to pay for the same $9.50 per 
 barrel. To the letter containing this offer they required an answer by 
 the return of the wagon by which the letter was despatched. This 
 wagon was at that time in the service of the defendant, and employed 
 by him iii hauling flour from his mill to Harper's Ferry, near to which 
 place the plaintifis then were. The meaning of the writers was obvious. 
 They could easily calculate by the usual length of time wliich was 
 employed by this wagon in travelling from Harper's Ferry to Mill Creek, 
 and back again with a load of flour, about what time they should receive 
 the desired answer ; and, therefore, it was entirely unimportant whether 
 it was sent by that or another wagon, or in any other manner, provided it 
 was sent to Harper's Ferry, and was not delayed beyond the time which 
 was ordinarily employed by wagons engaged in hauling flour from the 
 defendant's mill to Harper's Ferry. Whatever uncertainty there miglit 
 have been as to the time when the answer would be received, there was 
 none as to the place to which it was to be sent ; this was distinctly 
 indicated by the mode pomted out for the conveyance of the answer. 
 The place, therefore, to which the answer was to be sent constituted 
 an essential part of the plaintiffs offer. 
 
 It appears, however, from the bill of exceptions, that no answer to 
 tills letter was at any time sent to the plaintifts at Harper's Ferry. 
 Their offer, it is true, was accepted by the terms of a letter addressed 
 Georgetown, and received by the plaintiffs at that place ; but an ac- 
 ceptance communicated at a place different from that pointed out by 
 the plaintiffs, and forming a part of their proposal, imposed no obligation 
 binding upon them, unless they had acquiesced in it, which they declined 
 doing. 
 
 It is no argument, that an answer was received at Georgetown ; the 
 plaintiffs in error had a right to dictate the terms upon which they 
 would purchase the flour; and, unless they were complied with, they 
 were not bound by them. All their arrangements may have been made 
 with a view to the circumstance of place, and they were the only judges of 
 its importance. There was, therefore, no contract concluded between 
 these parties ; and the Court ought, therefore, to have given the instruction 
 to the jury which was asked for. 
 
 Judgment reversed. Cause remanded, with directions to award a 
 veidro facias de novo.
 
 CHAP. l] ■ HENDERSON V. STEVENSON. 43 
 
 HENDERSON et al. (STEAM-PACKET COMPANY) Appellants. 
 STEVENSON Respondent. 
 
 In the House of Lords, June 4, 1875. 
 
 [Reported in Lino Reports, 2 Scotcli Appeal Cases, 470.] 
 
 Lieutenant Stevenson, of tlie 18th Royal Irish Regiment, purchased 
 at the office of tlie owners of tlie Countess of Eylinton steamer, a ticket 
 for his passage from JJiMlti to Whitehaven, and went immediately on 
 board. Tlie ship was wrecked off the Isle of Man on the following day, 
 entirely through the fault ' of those in charge. Lieutenant iSteveyison got 
 ashore, and found refuge in a peasant's hut, suffering great personal incon- 
 venience, and losing his luggage, which was never recovered. On the 
 19th of June, 1872, he brought the present action against the above 
 Appellants for payment of £71 and costs. 
 
 The defence was a remarkable one ; the Appellants insisting that they 
 were free from all liability for injury either to the Pursuer or to his 
 luggage ; their allegation being that they had entered into no contract 
 with him ; and that, at all events, they were saved from responsibility by 
 an indorsement on the ticket which he had received, there being on the 
 back of it a printed intimation in the following words : — " The company 
 incurs no liability in respect of loss, injury, or delay to the passenger or to 
 his luggage, whether arising from the act, neglect, or default of the 
 company or their servants, or otherwise." 
 
 The Pursuer answered that the ticket on the face of it had only these 
 words : " Dublin to Whitehaven ; " and that he had never looked at the 
 ticket nor seen the notice on the back of it, no one having directed his 
 attention to either ; so that there was no assent on his part to the alleged 
 stipulation. 
 
 The Lord Ordinary (Lord Gifford) gave judgment in favour of the 
 Pursuer ; and on a reclaiming note the Second Division of the Court of 
 Session adhered to this decision '. 
 
 Against this judgment the Defenders in the Court of Session appealed 
 to the House, having for their counsel Mr Milward, Q.C., and Mr 
 E. C. Clarkson ; who maintained that the stranding of the ship was an 
 accident of the seas, for which the Appellants were not liable ; and 
 insisted that upon a true construction of the contract between the 
 Appellants and the Respondent they were not liable for his losses. 
 
 The followng cases were cited, namely : Zunz v. South Eastern 
 Rnilway Company' ; Carr v. Lancashire and Yorkshire Railway Company^ ; 
 and Stewart v. North Western Railway Company^. 
 
 1 Court of Session Cases, 4th Scries, vol. i. p. 215. 
 
 = Law Kep. 4 Q. B. 545. ^ 7 Ex. 707 ; 7 Kailw. Cas. 42G ; 21 L. J. (Ex.) 2G1. 
 
 ■> 3 H. & C. 135.
 
 44 HENDERSON V. STEVENSON. [CHAP. I 
 
 But at the close of the Appellants' argument, the Law Peers, without 
 calling on the Respondent's counsel, Mr Cotton, Q.C., and !Mr lV(f'siger, 
 Q.C., delivered the following opinions : — 
 
 The Lord Chancellor' : — • 
 
 My Lords, two questions have been argued on this appeal ; the first 
 being whether the contract between the parties had incorporated in it 
 certain conditions printed on the back of the ticket ; tlie other being a 
 question which arises only upon the supposition that those conditions 
 were so incorporated — whether they were in themselves legal conditions, 
 and what was their proper construction '? Upon the second question, my 
 Lords, I do not propose to make any observations ; but I will ask your 
 Lordships to direct your attention to the first question, the answer to 
 which appears to me of itself sufficient to dispose of tliis case. 
 
 The Respondent, an officer in Her Majesty's 18th Royal Irish Regiment, 
 desiring to travel from Dublin to Whitehaven, took from the above 
 Appellants a ticket for the voyage, going into their ticket office on the 
 wharf, at the North Wall of Dublin, alongside of which the steamship the 
 Coiintess of Eylinton was lying. He paid the fare for the voyage, and 
 obtained the ticket in return. 
 
 On the face of this ticket there are letters indicating the name of the 
 steam packet company, and the words "Dublin to Whitehaven." This 
 clearly, if the matter had so rested, would have been evidence of a 
 contract on the part of the steam packet company to carry the person to 
 whom the ticket was handed, in consideration of the money which he had 
 paid to them, from Dublin to WhitelMven, and to use all reasonable care 
 in the course of their undertaking so to carry him. 
 
 But, my Lords, on the back of the ticket there were printed these 
 words : 
 
 This ticket is issued on the condition that the company incur no liability whatever 
 in respect of loss, injury, or delay to the passenger, or to liis (or her) luggage, whether 
 arising from the act, neglect, or default of the company or their servants, or otherwise. 
 It is also issued subject to all the conditions and arrangements published by the 
 company. 
 
 There were also hung up in the office a time bill, and a list of fares ; 
 and also a general notice", which I need not further refer to, inasmuch as 
 no evidence whatever was given that the Pursuer saw, read, or indeed had 
 an opportunity of reading that general notice. But the question arises 
 what was the effect of handing to the Pursuer a ticket having the words 
 which I have mentioned upon the face of it, and having those further 
 sentences wliich I have read upon the back of it. 
 
 ' Lord Cairns. 
 
 " The general notice contained " an express condition that the passengers, and 
 o-vvners of the passengers' luggage, live stock, and goods, should undertake all risks 
 whatsoever."
 
 CHAP. l] HENDERSON v. STEVENSON. 45 
 
 Witli regard to tlie knowledge of the Respondent of what was printed 
 upon the back of the ticket, your Lordships have liis o\vn evidence, which 
 is not controverted, and upon which he does not appear to have heen 
 challenged or cross-examined, that in point of fact he did not read and 
 did not know what was printed upon tlie back of the ticket. There was 
 nothing upon the face of the ticket referring him to the back, and there 
 was nothing said by the clerk who issued the ticket directing the 
 Respondent's attention to what was printed upon the back. Your 
 Lordships therefore may take it as a matter of fact that tiie Respondent 
 was not aware of that which was printed upon the back of the ticket ; 
 consequently, so far as any intelligent knowledge of what was tliere 
 printed is concerned, he cannot be taken intelligently to have agreed to 
 the terms printed upon the back of the ticket. 
 
 I asked with some anxiety what was the authority for the proposition 
 that a member of the public was to be supposed to have contracted under 
 those circumstances in that way ; and I have listened with great attention 
 to all the authorities that have been cited. A great number of those 
 authorities are cases where there was no question at all arising as to what 
 the nature of the contract was. They were cases in which it was assumed 
 either by tlie admission of both sides, or by the pleadings, that terms 
 similar to those which I have read in the present case as printed on the 
 back of the ticket formed part of the contract in those dilierent cases. 
 Those cases therefore have no relation whatever to the present. There 
 were a considerable number of other cases in which for the conveyance of 
 animals or of goods, a ticket or paper had been issued actually signed by 
 the owner of the animals or by the owner of the goods. With regard, 
 again, to those cases there might indeed be a question what was the 
 construction of the contract, or how far the contract was valid. But 
 there could he no question whatever that the contract, such as it was, 
 was assented to and was entered into by the person who received the ticket. 
 
 But what are the cases which are analogous in any way to the present "i 
 My Lords, of all that were cited there was really only one which could be 
 said to appi'oach the present case. That was a case tried in the Passage 
 Court of Liverpool with regard to a ticket issued upon the occasion of an 
 excursion train'. And even with regard to that case, the observation is 
 obvious that when it is examined it is not an authority at all to decide the 
 present case. There a ticket had been issued to the excursionist which 
 had upon the face of it "ticket as per bill." Therefore on that part of the 
 ticket which the excursionist must have seen he was referred to some bill 
 or other upon the subject of the ticket. It was in evidence further, by 
 the admission of tlie excursionist himself, that he had seen and had read 
 in the office a large bill on the subject of the arrangements wth regard to 
 the excursion ; and that in that large bill he had seen a reference to some 
 
 ' Stewart r. North-Western Eailwaj- Company, 3 H. * C. p. 135.
 
 46 HENDERSON V. STEVENSON. [C'HAP. I 
 
 smaller bill or bills, but he had not referred to the smaller bills which 
 were so mentioned. In that state of things, although the jury in the Passage 
 Court found, and probably found riglitly, that the excursionist was not 
 aware of the contents of the smaller bills, the Court above' having leave 
 to draw inferences of fact, came to the conclusion that, under the 
 circumstances, the excursionist must be taken to have submitted liimself 
 to all the terms contained in the smaller bill, and to have been content to 
 do that without reading in detail what those terms were. 
 
 I express, my Lords, no opinion upon that decision beyond saying that 
 it does not in any way govern or cover the present case. The present 
 case is a case in which there was no reference whatever upon the face of 
 the ticket to anything other than that which was written upon tlie face. 
 Upon that which was given to the passenger, and which he read, and of 
 which he was aware, there was a contract complete and self-contained 
 without reference to anything dehors. Those who were satisfied to hand 
 to the passenger sucli a contract complete upon the face of it, and to 
 receive his money upon its being so handed to him, must be taken, as it 
 seems to me, to have made that contract, and that contract only, with the 
 passenger ; and the passenger, on his part, receiving the ticket in that 
 form, and without knowing of anything beyond, must be taken to have 
 made a contract according to that which was expressed and shewn to 
 him. 
 
 It seems to me that it would be extremely dangerous, not merely with 
 regard to contracts of this description, but with regard to all contracts, if 
 it were to be held that a document complete upon the face of it can 
 be exliibited as between two contracting parties, and, without an)' 
 knowledge of anything beside, from the mere circumstance tliat upon the 
 back of that document there is something else printed which has not 
 actually been brought to and has not come to the notice of one of the 
 contracting parties, that contracting party is to be held to have assented 
 to that which he has not seen, of which he knows nothing, and which is 
 not in any way ostensibly connected with that which is printed or written 
 upon the face of the contract presented to him. I am glad to find 
 that there is no authority for such a proposition in any of the cases that 
 have been cited ; and I agree entirely with the observation of the Lord 
 Ordinary^ in the present case, where he says in his note : 
 
 It has not been shewn that the Pursuer's attention was called either to the bills in 
 the office or to the notice on the back of the ticket, or that he knew either of the one 
 or of the other. There is no reason to doubt the Pursuer's word when he says he 
 never read the conditions on the back of the ticket. Now it seems fixed that, in a case 
 like this, mere notice not brought home to and assented to by the Pursuer is not enough^. 
 
 My Lords, the question does not, as it seems to me, depend upon any 
 
 1 The Court of Exchequer. ^ Lord Gifford. 
 
 » 4th Series of Scotch Cases, vol. i. p. 216.
 
 CNAP. l] HENDERSON V. STEVENSON. 47 
 
 technicality of law or upon any careful examination of decided authorities. 
 It is a question simply of common sense. Can it be held that when a 
 person is entering into a contract containing terms which dr, facto he does 
 not know, and as to which he has received no notice, that he ought to 
 inform himself upon them t My Lords, it appears to me to be impossible 
 that that can be held. The interlocutor of the Lord Ordinary, affirmed as 
 it was in all respects by the Second Division of the Court of Session, 
 appears to me to have been entirely correct ; and I therefore move your 
 Lordships that this appeal be dismissed with costs. 
 
 Lord Chelmsford : — 
 
 My Lords, the sole question is whether the Appellants are exonerated 
 from all liability to the Respondent by reason of the notice on the back of 
 the ticket delivered to him at the time of paying his passage-money. The 
 Lord Ordinary ' held that there was no proof that the Respondent assented 
 to this notice, and therefore that the Appellants were responsible for the 
 loss of his luggage, the vessel in which he was a passenger having been 
 wrecked by the default of the Appellants' servants. The Lord Justice Clerk ' 
 and Lord Benholme' also thought there was no assent to the notice. Lord 
 Cowan' and Lord N caves' both thought that the terms and conditions 
 indorsed upon the back of the ticket must be held to have been assented 
 to and to have formed part of the contract between the parties. But the 
 whole of the Judges of tlie Court below held that the loss sustained by 
 the Respondent was not embraced by the words of the notice. 
 
 The steam packet company was established for the carriage and 
 conveyance of passengers, passengers' luggage, live stock and goods. 
 Their liability by law to a passenger is to carry and convey him with 
 reasonable care and diligence, wliich implies the absence on the part of 
 the company of carelessness or negligence. Of course any person may 
 enter into an express contract with them to dispense with this oljligation 
 and to take the wliole risk of the voyage on himself. And this contract 
 may be established by a notice excluding liability for the want of care or 
 for negligence, or even for the wilful misconduct of the company's servants, 
 if assented to by the passenger. But by a mere notice, without such assent, 
 they can have no right to discharge themselves from performing what is the 
 very essence of their duty, which is to carry safely and securely, unless 
 prevented by unavoidable accidents. I think that such an exclusion of 
 liability for negligence cannot be established without very clear evidence 
 of the notice having been brought to the knowledge of the passenger and 
 of his having expressly assented to it. The mere delivery of a ticket with 
 the conditions indorsed upon it is very far, in my opinion, from con- 
 clusively binding the passenger. 
 
 The Lord Chief Justice in the case of Zunz v. South Eastern Itailway 
 
 ■ See the several opinioDS of the Scotch Juci(:;cfi, 4th Sorie.s of Scotch cases, vol. i. 
 p. 218.
 
 48 HENDERSON v. STEVENSON. [cHAP. I 
 
 Compnny', which lias been referred to, thought himself bound by the 
 authorities to hold that when a man takes a ticket with conditions printed 
 on it, he must Vie presumed to know the contents of it, and must he liound 
 by them. I was extremely anxious to be referred to the authorities which 
 influenced the judgment of the Lord Chief Justice ; but although numerous 
 authorities were cited by Mr Mihvard, none of them go the length of 
 establishing that a presumption of assent is suiBcient. Assent is a 
 question of evidence, and the assent must be given before the completion 
 of the contract. The company undertake to convey passengers in their 
 vessels for a certain sum. The moment the money for the passage is paid 
 and accepted, their obligation to carry and convey arises. It does not 
 require the exchange of a ticket for the passage-money, the ticket being 
 only a vouclier that the money has been paid. Or, if a ticket is necessary 
 to bind the company, the moment it is delivered the contract is completed 
 before the passenger has had an opportunity of reading the ticket, much 
 less the indorsement. It may be a question whether, if a passenger were 
 to read the indorsement and decline to agree to the terms, the company 
 could refuse to take him as a passenger. Holding themselves out as 
 undertaking to convey passengers by their vessels, it might be held that 
 they are bound to carry upon the tenns of their common law liability 
 alone, unless a special contract be entered into with the passenger. But 
 it is unnecessary to consider this point. 
 
 I have expressed a view of the case wliich places the right of the 
 Respondent to an interlocutor in his favour on a different ground from 
 that wliich was assumed by the Court of Session ; but I agree in the 
 reasons which led them to their conclusion, because I think that a 
 limitation of the legal liability of the steam packet company as carriers 
 ought to be most strictly construed, as well as the assent to it distinctly 
 proved. Therefore, my Lords, I agree with my noble and learned friend 
 that the interlocutors ought to be affirmed, and the appeal dismissed -mth. 
 costs. 
 
 LoKD Hatherley : — 
 
 My Lords, I entirely concur with my two noble and learned friends 
 who have preceded me. 
 
 There are two questions and two questions only in this case. The 
 first is. Has there been in fact any negligence on the part of the 
 Defenders 1 That is a point upon which both the Lord Ordinary and the 
 learned Judges of the Second Division of the Court of Session are 
 perfectly clear, and as to which we should have great hesitation in 
 differing from them if there was any doubt upon the subject ; but as we 
 can have none upon the evidence before us, it is not necessary for me to 
 pursue the point. I assume, therefore, that the loss sustained by the 
 Pursuer was entirely occasioned by the negligence of the Defenders. 
 
 1 Law rep. 1 Q. B. 5ii.
 
 CHAP. l] HENDERSON V. STEVENSON. 4^ 
 
 The otlier point was as to whether the Pursuer had cntored into a 
 contract by which he agreed to be his own insurer, so to express it, not 
 only against loss occurring in the course of the passage, but even against 
 any neglect or default on the part of the servants or agents of the 
 Appellants with whom lie contracted. Now he entered into a contract as 
 a passenger for the conveyance of himself and his luggage from Dublin to 
 W/iiiehaivn. In the absence of any restriction, assented to by him, to his 
 right, he was entitled to consider himself as assured of that passage in 
 safety, except so far, of course, as an obstacle might have arisen from any 
 absolutely unavoidable accident. The carriers were obliged to use all due 
 precaution and due care and diligence in carrying him and his luggage 
 when once they had completed a contract as common carriers, for the 
 purpose of so conveying him. They delivered to him a ticket, he having, 
 in the first place, paid his money for the passage from Dublin to 
 Wh itehaven. 
 
 I agree with the observation that was made liy my noble and leai-ned 
 friend', that, the money having been paid, and the ticket having been 
 taken up, a contract was completed iipon the ordinary terms of conveyance 
 for himself and his luggage, unless it can be made out that he had entered 
 into any special contract to the contrary. A ticket is in reality in itself 
 nothing more than a receipt for the money which has been paid. Of 
 course, terms may be imposed by the carriers, and parties may agree to 
 such terms in derogation of their right Numerou.s authorities were cited 
 by the counsel for the Appellants, but all those authorities I may say 
 either shewed (which the majority of them did) an actual signature by the 
 party, binding him somewhat stringently to certain conditions, or they 
 consisted of cases in which the pleading had been that, whether there had 
 been a signature or not there was an agreement ; and that was admitted, 
 and the cases turned and were decided upon that admission, which was, of 
 course, as good as if a contract had been signed. Keally, the only 
 exception among the authorities was that noticed by my noble and learned 
 friend the Lord Chancellor — the case in the Passage Court of Liverpool 
 with regard to an excursion train ; and I do not think it necessary to add 
 any further observation upon that case. 
 
 In the present case the steam packet company having received the 
 Pursuer's money, and having given him a receipt for it in the shape of a 
 ticket which bore upon the face of it simply a heading with the initials of 
 the title of the company and the words " Dublin to Whitehaven," what 
 was the Respondent's position % He was entitled to consider that he had 
 got a good and valid contract from common carriers to carry him upon the 
 ordinary terms from Dublin to Whitehaven. That was his position, unless 
 it can be shewn that he had in some way varied that position by a 
 special contract. Now it happens in this case, fortunately, tiiat there can 
 be no doubt as to whether he did or did not read or inciiiin' further into 
 
 1 Lord Chelmsford. 
 F. 4
 
 50 HENDERSON V. STEVENSON. [CHAP. I 
 
 those conditions which were on tlie hack of the ticket. He positively 
 swears in one part of liis examination to not liaving read the notice 
 printed on the hack of his ticket, and in his cross-examination he is in no 
 wise shaken on that subject. But not only tliat, your Lordships have one 
 of the Appellants themselves called on the other side, namely, Mr Robert 
 Hendersoii, and this question is put to him in his cross-examination : " Did 
 you give any instructions as to directing passengers' attention to these 
 conditions'?" And he says, "Yes; a large notice embodying the con- 
 ditions appears on the bills we issue each montli." Then he is asked, 
 " Did you give any instructions to the clerk who issued the tickets on your 
 behalf to direct the attention of passengers" to what was printed on the 
 backl" And his answer is, "No." The clerk himself is called, and he 
 says in his cross-examination, "I cannot say who bought the cabin ticket 
 for Wliiteliai-en. I was not in the way of drawing the attention of 
 passengers to the condition on the back of the ticket or to the notice." 
 That is clearly an admission of the fact that it was not this clerk's habit 
 to call the attention of passengers to that which the Appellants seek to 
 set up as part of the contract. It is an admission that, that condition 
 being printed not on the face of the ticket, but on the back of it, he did 
 not actually see to the passengers' attention being in any way called 
 to it. ' 
 
 Lord O'Hagan : — 
 
 My Lords, two questions have been raised in this case, and have been 
 the subject of decision in the Court below ; but, in the view which I take 
 of it, the ruling of the first will dispense with any consideration of the 
 second. The Respondent's loss, through the default of the Appellants, is 
 plain, and now undisputed. 
 
 The Appellants reply upon a contract relieving them from liability ; 
 but the Respondent says that he never entered in such a contract : that 
 the terms of it were never, in fact, made known to him ; and that his 
 assent to them was neither asked nor given. The question is one of 
 evidence. Did the Respondent enter into such a contracts With the 
 majority of the Judges in the Court below, and the noble and learned 
 Lords who have preceded me, I am of opinion that he did not. And 
 1 have reached that conclusion substantially for the reasons which have 
 been lucidly stated, and which it is not needful to repeat at any length. 
 
 Proof of the Respondent's knowledge and assent might have been 
 given in various ways. In certain circumstances, denial of them might 
 not be permissible ; in others, a jury or a Court might be satisfied of their 
 existence from antecedent dealings, notoriety of custom, publication of 
 notices, verbal communication, and so forth ; but I agree with the Lord 
 Chancellor that the mere receipt of a ticket, under such circumstances, 
 and with such an indorsement as we have before us, is not shewn by the 
 authorities cited at the Bar to furnish jwr se sufficient evidence of such
 
 CHAP. l] HENDERSON V. STEVENSON. 51 
 
 assent or knowledge. We liave positive and uncontradicted testimony 
 that they did not exist : and in declining to discard that testimony on tlie 
 strengtii of a false presumption, your Lordships will act in the spirit of 
 the legislation which would liave pronounced the contract we are asked to 
 enforce void if tlie case had come within the statute. Of course, as it dot s 
 not, we must deal with the facts as we find them : but it is satisfactory 
 that we are enabled to decide in harmony with the policy of Parliament', 
 which has relaxed the stringency of judicial decision in the interest of the 
 public, and limited the power of companies to escape the proper con- 
 sequences of their own misconduct or neglect. 
 
 We were asked by Mr Milward, in the course of his able argument, 
 what more could the Appellant have done to furnish notice of the terms 
 on which they proposed to contract? One answer — and there might be 
 many more — was supplied by some of the cases which he cited, and in 
 which the signature of the passenger or consignor demonstrated conclusively 
 his conscious and intelligent assent to tlie bargain by which it was sought 
 to bind him. When a company desires to impose special and most 
 stringent terms upon its customers, in exoneration of its own liability, 
 tliere is nothing unreasonable in requiring that those terms shall be 
 distinctly declared and deliberately accepted ; and that the acceptance of 
 them shall be unequivocally shewn by the signature of the contractor. So 
 the Legislature have pronounced, as to cases of canals and railways, 
 scarcely distinguishable in substance and principle from that before us ; 
 and if the effect of your Lordships' affirmation of the interlocutor of the 
 Lord Ordinary be to compel some precaution of this kind, it will lie 
 manifestly advantageous in promoting the harmonious action of the law, 
 and in protecting the ignorant and the unwary. 
 
 On the second question raised, I make no observation. The appeal, in 
 my opiiaion, should be dismissed, with costs. 
 
 Interlocutors appealed from affirmed ; and appeal dismiKsed, mth. costs. 
 
 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 
 In the High Court of Justice, April 26, M.\y 30, 187G. 
 
 [Reported in 1 Queen's Bench Division, 515.] 
 
 Action to recover the value of passenger's luggage delivered to the 
 defendants at their cloak-room. 
 
 1 Railway and Canal Traffic Act (17 & 18 Vict. c. 31), aud Carriers Act (U Geo. 1 
 & 1 Will. 4, e. f.8). 
 
 4— 2
 
 52 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CUAP. I 
 
 At tlic trial before Pollock, B., without a jury, a verdict was found for 
 the plaintiff for 601., with leave to move to enter judgment for the 
 defendants, the Court to have power to draw inferences of fact. 
 
 The facts are fuUy stated in the judgment of Blackburn, J. 
 
 April 26. Tliesiyer, Q.C., and Dighij, for the defendants. The condi- 
 tions on the back of the ticket were part of the contract : Henderson 
 V. Stevenson^; Van Toll v. South Eastern Ry. Co.'; York, Newcastle, and 
 Berivick Rij. Co. v. Crisp''; Stewart v. London and North Western By. 
 Co.*; Zunz V. South Eastern Ey. Co.''; Johnson v. Great Southern and 
 Western Ey. Co."; Lett-is v. McKee''. Those cases shew that express 
 assent to the conditions was not necessary, and that the reference on the 
 face of the contract, with the facts in evidence in this case, was sufficient 
 to make the conditions part of the contract. The conditions, being part 
 of the contract, protect the defendants from this loss : Van Toll. v. South 
 Eastern Ey. Co.'. 
 
 Sir H. James, Q.C., and Masterman, for the plaintiff. The conditions 
 on the back of the ticket were not part of the contract. Hetulerson v. 
 Stevenson' is a direct authority on this point. But even if they were, 
 they do not protect the defendants ; in the first place, because the contract 
 was that the luggage should be put into the cloak-room, and it never was 
 put there ; in the second place, because the conditions cannot exempt the 
 defendants from re.sponsibility for gross negligence : Birkett v. Willan" ; 
 Hodges on Railways, 5th ed. p. 546, citing W yld v. Fickford^. 
 
 [Blackburn, J. Hinton v. Dihhin '" is against that contention.] 
 
 Hinion v. Dihbin'" was a decision upon 11 Geo. 4 & Wm. 4, c. 68, and 
 does not diminish the weight of Wyld v. Pickford^ as an authority upon 
 conditions apart from statute. 
 
 [Blackburn, J. In Hinton v. Dibbin"' the effect of conditions apart 
 from the statute was also considered.] 
 
 Gill V. Manchester Ey. Co.", and D'Arc v. London and North Western 
 Ey. Co. '■, the latter following Eobinson v. G7-eat Western Ey. Co. ", shew 
 that the defendants are responsible, notwithstanding the conditions. 
 
 Bigby, was heard in reply, and referred to Gallin v. London and North 
 Western Ey. Co."' and Peek v. North Staffordshire Ey. Co.": 
 
 Cur. adv. vult. 
 
 1 Law Rep. 2 H. L., So. 470. = 12 C. B. (N.S.) 75 ; 31 L. J. (C.P.) 241. 
 
 3 14 C. B. 527 ; 23 L. J. (C.P.) 125. ■> 3 H. & C. 135 ; 33 L. J. (Ex.) 199. 
 
 « Law Eep. 4 Q. B. 539. " Ii-. Rep. 9 C. L. 108. 
 
 ' Law Eep. 4 Ex. 58. 8 2 B. & Aid. 356. 
 
 » 8 M. & W. 443. 10 2 Q. B. 646. 
 
 " Law Rep. 8 Q. B. 186. '^ Law Eep. 9. C. P. 325. 
 
 " 35 L. J. (C.P.) 123. iJ Law Eep. 10 Q. B. 212. 
 '5 10 H. L. C. 473 ; 32 L. .T. (Q.B.) 241.
 
 CHAP. l] HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 53 
 
 May 30. The following judgments were delivered : — 
 
 Lush, J. I agree with my learned Bi-otliers in holding, and for 
 the same reasons, that the goods in question were delivered to and were 
 accepted by the company, upon the terms and conditions mentioned in the 
 ticket, and that the contract of the company was therefore qualified 
 by those conditions. But upon the second question, namely, whether, 
 under the circumstances disclosed in the case, the company can avail 
 themselves of the protection intended by the first condition, I have 
 arrived at a different conclusion. 
 
 I think the condition is not applicable to the kind of custody in which 
 these packages were kept. Of course, if a package intrusted to a ware- 
 houseman is restored to the owner in the same condition as it was when 
 lie delivered it, it matters not to him whei'e and how it has been kept. 
 The warehouseman in that case will have fulfilled his contract, and no 
 cause of complaint arises though he may not have kept it in the place 
 where he contracted to keep it. It is only when the package has been 
 lost or damaged that it becomes material to inquire where it was deposited 
 and how the loss or damage was occasioned, in order to ascertain whether 
 it was attributable to any negligence of the warehouseman, for he is not 
 an insurer, and is only responsible for loss or damage happening through 
 his default. His contract is, to take due and reasonable care of the goods 
 intrusted to him, which includes the keeiiing them in a suitable place 
 where they will not be expo.sed to depredation, or to damage by weather, 
 breakage, or otherwise. If, notwithstanding such due and reasonable care 
 the goods are stolen, burnt, or damaged, he is not i-esponsible ; but if these 
 casualties happen through his negligence he is. 
 
 The parcels in question being of comparatively small dimensions and 
 weight, and therefore easily removable, ought to have been kept out of the 
 way of thieves. If either had happened to be of less value than .5/., and 
 so not -svitliin the lir.st condition, there would, I apprehend, have been no 
 doubt in the mind of any one that the company would have been liable to 
 make good the loss ; and the ground of their liability would have been the 
 not keeping it in a reasonably safe place of deposit. They would have 
 been told that if they chose to keep such goods unguarded in a place 
 of pulilic resort, they did so at their own risk and not at the risk of the 
 owner. If they had kept them in the cloak-room, and they had been 
 stolen from thence by reason of the door being carelessly left open, or if 
 they had been damaged by any carelessness of their servants, in that case 
 also, the company would have been liable, but if, without any fault on the 
 part of their servants, they had been stolen, burnt, or injured, the loss 
 would have fallen on the owner. 
 
 The condition must, in my opinion, be read as intended to protect the 
 company in cases where they would otherwise have been responsible by 
 reason of the negligence of their servants in the keeping and management 
 of the warehouse, and not to relieve them from the duty of warehousing at
 
 54 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 all. Whfit the owner pays for is sucii an amount of security as a reason- 
 ably safe warehouse affords, and not the mere permission to leave the 
 goods on the company's premises. In other words, the owner who does 
 not insure takes upon himself a warehouse risk, the risk of his goods being 
 stolen, burnt, or damaged, while tliere. The argument on the part of the 
 company casts on him a risk which no one contemplates when he pays for 
 warehousing, and which would excuse the company not merely for want of 
 care in the keeping, but for actual exposure of the goods in the open air, 
 not only to every passing thief, but to damage by rain, or breakage, 
 or otherwise, if this was done by their servants in neglect of their duty — 
 in fact they would be irresponsible though no precaution whatever were 
 taken to secure the safety of the goods. 
 
 I cannot think that this is the true meaning of the condition, because 
 it would be utterly inconsistent with the relation of bailee for reward and 
 bailor, and, in my view, equally inconsistent with the terms of the ticket 
 itself. 
 
 The ticket is headed, "Luggage and cloak office." This, it is true, 
 may merely be meant to indicate the place where it is issued. But it goes 
 on to state that the sum charged is for "warehousing." It notifies that 
 the company wiU not be responsible, under any circumstances, for loss of, 
 or injury to, articles, " except left in the cloak-room," that they will not 
 deliver up luggage except to persons producing the ticket ; and, lastly, 
 that " the cloak-room is only open on Sundays at such times as the trains 
 arrive at, and depart from, the station." What is this but a plain intima- 
 tion that the goods are to be deposited in tlie cloak-room % Why, otherwise, 
 should the depositor be informed at what hours the cloak-room is open on 
 Sunday ? 
 
 The inference is to my mind irresistilile that the company, by the very 
 terms of the ticket, engage to keep tlie goods in the cloak-room ; and, that 
 being so, the condition in question must be read as applying to a cloak- 
 room custody, and as if the words had been that the company will not be 
 responsible if they are stolen from the cloak-room, or burnt, or delivered to 
 the wrong person, or damaged while there, although this may have been 
 caused by the negligence of their servants. As the goods were never in 
 the cloak-room, they were not subject to the condition. It seems needless 
 to say that the loss is directly attributable to this breach of contract, for, 
 if the articles liad been in the cloak-room, the thief could not have got at 
 them so as to pass them ofl' as his own luggage. 
 
 The case closely resembles, I think, Lyon v. Mells '. There a lighter- 
 man, who had given notice that he would not be answerable for any loss 
 or damage to any cargo put on board his lighter, unless such loss or damage 
 should be occasioned by want of ordinary care and diligence in the master 
 or crew, and then only to the extent of 10 per cent, upon the loss or 
 damage, was held not entitled to any protection where the damage was 
 
 I 5 East, 128.
 
 CHAP, l] HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. 55 
 
 caused by tlie uiise;iworthiiiess of tlie ligliter, a breach of the condition 
 implied by law. Tlie notice was construed as applicable solely to goods 
 carried in a seaworthy vessel. 
 
 For these reasons I am of opinion that our judgment ought to be for the 
 plaintiff. 
 
 Mellor, J. In this case the facts and evidence, so far as they 
 appeared on the trial before Pollock, B., without a jury, are sufficiently 
 set out in tlie judgment about to be delivered by my Brother Blackburn, 
 and I think it unnecessary to state them. 
 
 On the argument, two questions were made ; first, whether the plain- 
 tiff, under tlie circumstances, was bound by the terms of the ticket, which 
 was delivered to her agent on his depositing the portmanteau and box in 
 the custody of the defendants' servants in the vestibule to the cloak and 
 luggage room ; secondly, whether, on the true construction of the terms of 
 the ticket, the company were relieved from liability by the fact, that on 
 the deposit of the portmanteau and box no declaration was made of the 
 true value and nature of the articles or property therein, as required 
 by the second condition, each article being above the value of 5^. 
 The ticket in question was as underneath : — 
 "G. 56 Great Western Railway. 
 
 " No. 999 Paddington Station. 
 
 " (295) Luggage and Cloak Office. 
 
 "Friday the 29th of May, 1874. 
 
 Articles. 
 
 1 Portmanteau ...... 
 
 1 Box 
 
 Insurance on £ @ Id. per £ . 
 
 Additional charge for days @ Id. \ 
 
 each article per day ... J 
 
 Total 
 
 Amount. 
 s. (/. 
 
 " Left in the name of 
 
 and subject to the conditions on the other side. 
 
 "J. L., CkrL 
 "This ticket to be given up when the luggage is taken away." 
 
 " Conditions. [On the back of the ticket.] 
 "N.B. — The Great Western Railway Company appoint that the 
 undermentioned sums be paid them for warehousing passengers' luggage, 
 which has been, or which is about to be, conveyed on their railways, 
 viz. : — 
 
 " For any period not exceeding three days, twopence for each package ;
 
 oG HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 and after three clays, one penny additional for each package per day, or 
 part of a day. 
 
 " And tliey liereby give notice that they will not be answerable for 
 loss of, or injury to, any such package beyond the value of five pounds, 
 unless at the time of tlie delivery of such package to them the true value 
 and nature thereof, and of the article or articles, or property therein, 
 shall liave been declared by the person delivering the same, and a sum at 
 the rate of one penny per pound sterling of the declared value be paid for 
 sucli package for each day, or part of a day, for which the same shall be 
 left, in addition to tlie before-mentioned ordinary warehouse charges. 
 
 " Every person depositing luggage will be furnislied with a receipt, 
 stating the number and description of the articles deposited, wliich receipt 
 must be given up to the companies' servants upon their delivery of the 
 articles tliereon described ; and the companies give notice that they will 
 not deliver up luggage, except to persons producing tlie proper receipt for 
 the respective articles claimed, wliich delivery sliall acquit the companies 
 from all further claims in respect tliereof. 
 
 " The company will not be responsible, under any circumstances, for loss 
 of, or injury to, articles, except left in the cloak-room. 
 
 " The company's servants are proliibited, under pain of instant dis- 
 missal, from receiving fees or gratuities, under any pretence whatever. 
 
 " On Sundays the cloak-room is only open at such times as tlie trains 
 arrive and depart from their stations." 
 
 The counsel for the plaintiff very much relied on the authority of the 
 case of Henderson v. Stevenson ' in the House of Lords, and contended 
 that the principle to be deduced from that case governed the present, and 
 unless the present case can be distinguished, we are undoubtedly bound to 
 follow tliat decision. 
 
 I do not intend to say that we are bound by all the dicta which fell 
 from the learned Lords who delivered judgment seriatim in that case, but 
 we are bound by the ratio decidendi to be collected from those separate 
 judgments. In tliat case the Lords were judges both of law arid of fact, 
 but, by the effect of the reservations in this case, we are in the same 
 position, and acting in the capacity of judges we declare the law, and of 
 jurymen we draw inferences fi'om the facts. In the report of the case of 
 IIenderso7i v. Stevenson ', the headnote, with substantial accuracy, re- 
 presents the facts as follows: — "A ticket having on its face only the 
 words ' Dublin and Whitehaven ' was given to a passenger, who, without 
 looking at it, paid for it and went on board. Having lost all his luggage, 
 lie brought an action against tlie company for its loss. Defence of tlie 
 company, that on tlie back of the ticket there was an intimation that they 
 were not to be liable for losses of any kind or from any cause." In care- 
 fully considering the judgments in that case, we find the Lord Chancellor 
 thus expressing himself : " There was nothing upon the face of tlie ticket 
 ' Law Rep. 2 H. L., Sc. 470.
 
 CHAP. l] HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. j7 
 
 referring liiui to the back, and there was notliing said l.iy the clerk 
 wlio issued tlie ticket directing tlie respondent's attention to wliat was 
 printed on tlie back." And further on he says : " The present is a case in 
 which there was no reference whatever upon the ticket to anything other 
 than that which was written upon the face. Upon that which was given 
 to the passenger, and which he read, and of which he was aware, there 
 was a contract complete and self-contained without reference to anything 
 dehors." And, referring to the case of Steivnrt v. N 07-th Wpstern liy. Co. ', 
 he declined to express any opinion upon it beyond saying it did not 
 govern the case tlien under consideration. 
 
 It is true that Lord Chelmsford intimated an opinion to the effect that 
 " Tlie moment the money for the passage is paid and accepted their 
 obligation to carry and convey arises. It does not require the exchange of 
 a ticket for the passage-money, the ticket being only a voucher that the 
 money has been paid." 
 
 Lord Hatherley's opinion seems to be in accord with Lord Chelmsford's 
 as to the effect of the ticket being merely in the nature of a voucher that 
 the passage-money has been paid. 
 
 Lord O'Hagan's opinion is certainly more iii conformity with the 
 reasons assigned by the Lord Chancellor, and he said " that the receipt of 
 a ticket under such circumstances, and ■with such an indorsement as 
 we have before us, is not shewn by the authorities cited at the Bar to 
 furnish, per se, sufficient evidence of such assent or knowledge." 
 
 Doubtless some of the observations wliich fell from Lord Chelmsford 
 and Lord Hatherley may appear to have a bearing beyond the precise 
 facts of that case, but I cannot help thinking that they were only intended 
 to refer to the peculiar circumstances which there appeared, and the 
 description of the ticket upon which the matter arose. 
 
 In the present case the journey of the plaintiff was complete and the 
 responsibility of the company as carriers had ceased, but they had, for the 
 convenience of the travelling public, established a luggage and cloak office, 
 where passengers encumbered with luggage might, for their o'wn conveni- 
 ence, deposit it on certain prescril)ed payments and on certain conditions 
 both as to time of warehousing and re-delivery. Prima facie, therefore, 
 and as a matter of common sense, the person depositing the luggage would 
 expect to do it on some special terms and conditions as to remuneration 
 and care. Accordingly, on the luggage being brought to the luggage and 
 cloak office to be deposited, and a payment of so much per article being 
 demanded for the temporary accommodation required by the passenger, 
 and the number of the articles being ascertained, an entry was made 
 in the presence of the depositor on a printed ticket, which is not only 
 a statement of the fees to be paid to the company, but is also a voucher 
 for the re-delivery of the articles deposited, and a statement of the condi- 
 tions upon which alone the company will accept the deposit. 
 > 3 H. & C. 135 ; .33 L. J. (Ex.) 199.
 
 58 HAIIRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 A fac-simile of the ticket, and of all the matters contained on it, 
 are set out above, and it appears that, in order to render the ticket of a 
 convenient size, the paper referred to was printed on both sides, the first 
 side specifying the articles as kept in the name of , and " suljject to 
 
 the conditions on the other side," followed by the initials of tlie clerk, and 
 then, underneath, are printed the words, " tliis ticket to be given up when 
 the luggage is taken away," and, on the other side, in conformity with the 
 notice to that effect contained on the first side, are stated the conditions, 
 and a notification of the times at wliich the cloak-room is open for receipt 
 and delivery of packages. 
 
 The ticket in this case much resembles a half-sheet of paper, upon 
 which the writer, having filled up one side, turns over the page and con- 
 tinues the matter on the other. 
 
 The depositor in the present case not only was aware that the paper 
 ticket so filled up and handed to him, in exchange for the portmanteau 
 and box, contained something relating to the deposit, but believed that it 
 contained conditions. Drawing inferences from his evidence, I come 
 to the conclusion that he knew that the ticket contained tenns and condi- 
 tions in which the deposit was made, although he did not choose to read 
 them so as to become aware of the exact contents. Under such circum- 
 stances, it would indeed be .strange to hold that he was not bound by the 
 terms and conditions of the ticket, which he accepted without objection, 
 I come, therefore, to the conclusion that he cannot be permitted to excuse 
 the plaintiff from the obligation of the tenns of the ticket, on any pretext 
 that he did not actually reiid them so as to become aware of the actual 
 conditions. 
 
 I am further of opinion that the plaintiff was bound by the conduct of 
 her agent, and is precluded, under the circumstances, from setting up any 
 defence that she did not deposit the luggage on the terms which the 
 ticket so handed to her agent contained, or assent thereto. 
 
 On the second question I feel considerable hesitation. Assuming that 
 the plaintiff assented, or is precluded from objecting that the deposit 
 of the luggage was not made on the terms and conditions of the ticket in 
 question, then arises the question whether or not, on the true construction 
 of the tenns and conditions of the ticket, the company undertake simply 
 to warehouse the luggage for the convenience of the passengers, using the 
 machinei-y of the luggage and cloak office as the office and place of business 
 in which the matters relating to the deposit must be made and the ticket 
 business 'transacted, or did they undertake to warehouse the articles left in 
 their charge in the actual luggage and cloak office, so as to give to the 
 person making the deposit, and paying the prescribed sum, the additional 
 security which the actual deposit within the luggage and cloak office 
 would afford ] And it is to be observed that, the luggage and cloak office 
 being locked up, except during the arrival and departure of trains, when 
 a servant or servants would V)e present, and would probably prevent the
 
 CHAP. l] HARRIS ('. THE GREAT WESTERN RAILWAY COMl'AXY. ")9 
 
 access of sti-angers or tliieves to the articles deposited, it may be said that 
 the depositor might be willing to pay for the accommodation offered, 
 if accompanied by the additional secui'ity afforded by the cloak-room, and 
 yet not be willing to assent to tlie conditions if the company were only to 
 accept the responsibility of warehousing them generally. 
 
 Now, it is to be observed that the conditions on the face of them 
 appear to apply in terms to " the warehousing passengers' luggage ; " and, 
 at the end of the condition upon wliich the defence upon this point rests, 
 \"iz. the failure to declare the value and nature of tlie articles in (juestion 
 on the ground that they were beyond the value of 5^., the sum, which by 
 the condition was required to be paid on the value declared, is described 
 to be " in addition to the before-mentioned ordhiary ivarehoiise c/iart/es." 
 
 It was, however, contended that in the fourth condition it is said, the 
 company will not be responsible for the loss of, or injury to, articles 
 "except left in the cloak-room," and that those articles not being left 
 in the " cloak-room," the conditions do not apply to the case. I cannot, 
 however, but think that the true effect of that condition with the others 
 really is to notify that, unless the articles have gone through the process of 
 being ascertained, counted, and the fees duly paid at the luggage and cloak 
 office, the company will not be responsible at all. 
 
 I have come, therefore, to the conclusion that the limit of the com- 
 pany's undertaking was simply to warehouse the articles deposited on the 
 conditions specified, and that they did not lose the benefit and protection 
 of the conditions of the ticket, because the articles in question were not 
 actually warehoused in the cloak room but were stolen from the vestibule. 
 
 I think, therefore, that the defendants are entitled to our judgment on 
 both points. 
 
 Blackburn, J. The plaintiff was a passenger by defendants' railway, 
 and arrived at the Paddington station in London with a portmanteau and 
 a box, which she wished to leave in the custody of the defendants. Mr 
 Richard Harris, who acted for her, paid to the clerk of the defendants, at 
 their cloak-room, four pence, and received from liim a ticket, on the teniis 
 of which much depend.s. He left the portmanteau and box in tlie custody 
 of the defendants' servants ; they put on tliem cloak-room labels, and left 
 them mthout any other protection in the vestibule. A plan was admitted 
 on the trial, and produced before us on the argument, which shewed the 
 position of the cloak room and the vestibule. Tlie vestibule is a place to 
 wliich passengers have access, and in which luggage in the custody of 
 passengers may be placed by them. A thief, taking advantage of this, 
 either removed or concealed the cloak-room tickets, treated tlie luggage as 
 his own, and with an extreme of cool impudence, applied to tlie defendants' 
 policeman on duty to assist in removing them, which the policeman did. 
 The thief was subsequently convicted, but only part of the property was 
 recovered. Each package of Miss Harris's luggage was above the value of 
 51., and her loss was 60/., and for this the action was brought.
 
 (10 HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 At the trial, before my Brotlier Pollock without a jury, the above facts 
 were admitted, and neither then nor on the argument before us was 
 it disputed that the loss was occasioned in consequence of the servants of 
 the defendants having failed to exercise proper care in and about the safe 
 keeping of the luggage thus left with them. The defence was rested 
 on the ground that the plaintiff was bound by the terms of the ticket, 
 which, it was said, prevented the plaintiff from recovering for any loss to 
 a package above the value of 51. unless the value was declared and 
 insurance paid at the rate of one penny per pound per day. 
 
 Mr Eichard Hariis was called as a witness, and his evidence, as taken 
 down on the judge's notes, was as follows : — " When I left the box and 
 portmanteau my attention was not called to the conditions on the ticket, 
 nor was I aware of them." Cross-examined : " I have been in the habit of 
 travelling for many years, and during the last three yeare have left parcels 
 at this cloak-room perhaps once a month when I came to town on business. 
 I believe I have always, on tliose occasions, received a ticket similar 
 to this. I was not aware of the conditions. I have probably seen 
 conditions on the cloak-room tickets of other English railways. I believe 
 I have seen printing on both sides of the Great Western tickets without 
 reading them. I knew that I must deliver up the ticket when I wanted 
 the articles deposited. I have seen the words on the ticket, ' This ticket 
 to be given up when the luggage is taken away.' " Question : " Were you 
 not aware it contained some conditions with reference to the deposit of the 
 luggage although you were not aware what they were 1 " Answer : 
 " I believed that there were some conditions." Ee-examined : " My 
 attention was not called to any condition, and I never gave it a thought. 
 When 1 say I have always received a ticket similar to this I mean similar 
 in general appearance." It was then admitted that the tickets used 
 by defendants have for several years been the same as the ticket produced. 
 The learned judge found for the plaintiff, 60/., reserving leave to move 
 to enter judgment for the defendants, the Court to draw inferences of fact. 
 The ticket (or rather a fac-simile of it) was produced on the argument 
 of the motion before us. 
 
 Two questions were discussed. First, whether the plaintiff was, under 
 the circumstances, bound by the terms of the ticket. Second, whether, on 
 the true construction of those terms, they protected the defendants from 
 liability for the loss, arising as this did. If either question is decided in 
 favour of the plaintiff, the verdict and judgment for lier must stand. I 
 have, however, come to the conclusion that both questions should be 
 answered in favour of the defendants, who are therefore, in my opinion, 
 entitled to judgment. 
 
 I will, fir-st, give my reasons for thinking that the plaintiff was, under 
 the circumstances, bound by the terms of the ticket. 
 
 The materials from which we are to draw inferences are, first, the 
 evidence of Mr Harris, which I accept as true, and do so the more readily
 
 CHAP. l] HARRIS V. THE GREAT WESTERN RAILWAY C'OMrAXY. ()l 
 
 because he describes himself as being in a state of imperfect information, 
 which I think probably very common ; and, secondly, the ticket whicli was 
 produced befoi-e us. The appearance of the face of the ticket is material 
 in deciding this first question. The conditions on the back only become 
 material in deciding the second (juestion. It was a paper about five and 
 a half inches square, bearing the ordinary appearance of having been 
 taken out of a book in which a counterfoil was left. The printed part 
 was in clear, fair-sized type, such as any one might easily read. My 
 Brother Mellor has, in his judgment, sufficiently stated its contents. 
 
 On the law governing this case, we were referred to the case of 
 Henderson v. Stevenson ', decided by the House of Lords sitting in appeal 
 on a Scotch case, but on a subject in respect to which the law of Scotland 
 and the law of England are one and the same. Tlie Lords were there, in 
 consequence of the forms of Scotch law, judges of fact, and we, in this 
 case, are, in consequence of the manner in which the point is reserved, also 
 judges of fact. I think that all inferior tribunals, and the Lords them- 
 selves on any subsequent occasion, are not only required to treat this 
 decision with great respect as an authority, but are bound to follow it as a 
 decision. If it is thought wrong, it must be altered by the legislature. 
 And I make no distinction between the decision on the principle of law, 
 as applicable to this case, and the principle on which the Lords drew the 
 inference from the facts. I think the same inference should be drawn 
 from the same facts, or facts which are in substance the same. But 
 I tliink this is only true so far as the decision, or rather the ratio deci- 
 dendi, of the House goes ; and that opinions expressed by one or more of 
 the Lords in delivering their opinions, if not part of the decision, are to be 
 treated with great respect as authoiities, but are not binding either on the 
 House itself on a future occasion or on any other Court. 
 
 This, I thiidi, was decided in Mersey Docks v. Gihhs^. Lord Cottenham 
 had, in Duncan v. Fincllater^, enunciated a doctrine which was in direct 
 conflict with the opinion delivered by the judges in Mersey Docks v. Gibbs'\ 
 The judges, after mentioning what Lord Cottenham's opinion was, say': 
 " This is, no doubt, a very high authority, being said by the Lord Chancel- 
 lor in the House of Lords, though in a Scotch case, but, not being 
 the point decided by the House, it is not conclusively binding, and 
 we think that, with great deference to his high authority, we must dissent 
 from the position there laid down." Lord Cranworth and Lord Wensley- 
 dale did not think it necessary to enter into details, and merely expi-essed 
 their concurrence in the opinion delivered by the judges, thus deciding in 
 contradiction to what Lord Cottenham had laid down in Duncan v. Find- 
 later^, without expressly saying anything about it. But Lord Westbury' 
 thought it desirable " to say a few words with reference to the difficulty 
 
 1 Law Eep. 2 H. L., Sc. 470. = 11 H. L. C. 686. 
 
 ^ 6 CI. & F. 894. ■• 11 H. L. C. at j). 720. 
 
 = 11 H. L. C. at pp. 732—7.3.3.
 
 C2 nAKRis V. THE great western railway company, [chap, r 
 
 felt by the learned .judges in consequence of certain observations that fell 
 from Lord Chancellor Cottenham, and which are reported in the ca.se 
 of Duncan v. Find/aferK" He then proceeds to express dissent from 
 Lord Cottenham, and finally adds : " My Lords, the learned judges 
 observed, and with very great correctness, tliat it is not every thing tliat 
 falls from a noble and learned lord in advising the House whicli is to be 
 considered as the opinion of tlie House." 
 
 I call attention to this matter particularly, because I not only think 
 myself bound to obey the decision of the House in liendersori v. Stevenson', 
 but I also think (if I rightly understand the judgment) that, though that 
 decision goes a step further than any prior decision of which I am aware, 
 it is a logical extension of a principle which had been previously recognised 
 by the courts ; and therefore I not only obey that decision, but acquiesce 
 in it. But there are expressions used by the diflerent Lords which seem 
 to express opinions which were not, I think, part of the decision of 
 the case then before them, and which are not, in my opinion, correct when 
 applied to the case we have before us of a ticket given on the deposit 
 of goods with a company who do not hold themselves forth as general 
 receivers of goods to be kept for hire, but let it be known that though they 
 do not and will not, as a general rule, receive or keep such goods, 
 they will take them if the passenger brings them to a particular office, and 
 there receives a ticket, on the production of which the goods will be given 
 up to the person producing it. 
 
 On the deposit of goods with a bailee who receives reward, so as 
 to bring the case within the fifth head of bailments, mentioned by Lord 
 Holt in C'oggs v. Bernard'^, the bailee (unless he is one who has the 
 responsibilities of a public cari'ier or innkeeper) undertakes no fui'ther 
 obligation than to take proper care that the goods are safely kept from loss 
 or injury : the deposit and i-eceipt by the bailee for reward proves, 
 as a matter of law, that the bailee received them on the terms that he 
 undertakes this, and is responsible for any loss or injury occasioned by any 
 neglect of the duty which he has thus undertaken. But if the bailor and 
 bailee agree that the goods shall be deposited on other terms than those 
 implied by law, the duty of the bailee, and consequently his responsibility, 
 is determined by tlie terms on which both parties have agreed. And it is 
 clear law that where there is a writing, into which the terms of any 
 agreement ai'e reduced, the terms are to be regulated by that writing. 
 And though one of the parties may not have read the writing, yet, 
 in general, he is bound to the other by those terms ; and that, I apprehend, 
 is on the ground that, by assenting to the contract thus reduced to writing, 
 he represents to the other side that he has made himself acquainted with 
 the contents of tliat writing and assents to them, and so induces the other 
 side to act upon that representation by entering into the contract with 
 
 ■ 6 01. & F. 894. 2 Law Eep. 2 H. L., Sc. 470. 
 
 3 2 Ld. Raym. 909 ; 1 Sm. L. C. 188, 7tli Edit.
 
 CHAP, l] HARRIS I'. THE GREAT WESTERN RAILWAY CdMl'AXV. G-S 
 
 liim, and is consequently precluded from denjiiii,' that he did make 
 liimself ac(i[uaintcd with those terms. But tlien the jirechisiou only exists 
 when tlie case is brought witliin the rule so carefully and accurately laid 
 down by Parke, B., in delivering tlie judgment of the Exchequer in 
 Frei'man v. Cooke^, that is, if he "means his representation to be acted 
 upon, and it is acted upon accordingly : or if, whatever a man's real 
 intentions may be, he so conduct himself that a reasonable man would 
 take the representation to be true, and believe that it was meant that he 
 should act upon it, and did act upon it as true." And accordingly, in 
 Allan V. JfausoH^, where the plaintiff had taken an instrument wliich on 
 a cursory view appeared to be a draft on Sir John Perring and others, 
 bankers, London, but with the word "at" in very small letters enclosed in 
 tlie hook of the S of the Sir, so as to make it at least doubtful whether 
 the instrument did not purport to be a promissory note, Gibbs, C. J., asked 
 the jury whether the word "at" was so inserted for the purpose of 
 deception, for if so, it was to be struck out, and the instrument was a bill 
 of exchange in fact. A similar decision, mentioned by Lord Hardwicke, 
 in 2 Atk. 32, had been come to by Lord Macclesfield in a case where 
 a man gave a girl a promissory note for " 20/. value received, which 
 I promise never to pay," and the word " never " was rejected. Both of 
 those cases seem to me to proceed on the ground that in neitlier case 
 could the defendant, as a reasonable man, believe that the other party h<ad 
 read the words inserted for the purpose of deceit, or that the other party 
 meant to represent to the defendant that he had done so. 
 
 The decision in Henderson v. Stevenson' seems to me to proceed on the 
 same principle, but to cai'ry it one step further. There was no fraud or 
 intentional deception found in that case, as there had been in tlie two 
 just cited, but there was nothing to shew that the steamboat company, 
 who were the defendants in that case, or tliose who represented them, as 
 reasonable men, would believe, from the conduct of the passenger, that he 
 had represented to them that he had read or looked at the back of the 
 ticket, and in point of fact he had not. 
 
 Lord Cairns, L.C., says : " On the face of this ticket there are letters 
 indicating the name of the steamboat company, and the words ' Dublin to 
 Whitehaven.' This clearly, if the matter had so rested, would have been 
 evidence of a contract on the part of the steam packet company to carry 
 the person to whom the ticket was handed, in consideration of the money 
 which he had paid to them, from Dublin to Whitehaven, and to use 
 all reasonable care in the course of their undertaking so to carry him." 
 He then points out that there was no reference on the face of the ticket to 
 that wliich was printed on the back, and that the evidence was that the 
 passenger had not, in fact, read what was on the back of the ticket, and 
 proceeds : " The present is a case in which there was no reference wliat- 
 
 1 2 Ex. at p. 6G.S ; 18 L. J. (Ex.) at p. 119. •■' i Camp. 115. 
 
 ■' Law Rep. 2 H. L., Sc. 470.
 
 6-i HARRIS r. THE OREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 ever upon tlie face of tlie ticket to anything other tlian tliat which 
 was written upon the face. Upon that which was given to the passenger, 
 and which he read, and of which lie was aware, there was a contract 
 complete and self-contained, without anything dehors. Those who were 
 satisfied to hand to the passenger such a contract, complete upon the face 
 of it, and to receive his money upon its being so handed to him, must be 
 taken, as it seems to me, to have made that contract, and that contract 
 only, with the passenger ; and the passenger, on his receiving the ticket in 
 that form, and without knowing of anything beyond, must be taken to 
 have made a contract according to that which was expressed and shewn to 
 him." It certainly seems to me that this is, in other words, to say that, 
 though the ticket was the contract, the passenger receiving such a ticket 
 had not so conducted himself as to justify the steam packet company, 
 or their servants, as reasonable men, in thinking that he had read, or 
 ought to have read, or otherwise made himself acquainted with, what was 
 on the back of the ticket, and consequently that the passenger was not 
 precluded from shewing that, in fact, he knew nothing of what was on the 
 back. But, in the present case, the ticket has on the face of it a plain 
 and unequivocal reference to the conditions printed on the back of it, and 
 any person who reads that reference could, without diificulty, look at the 
 back and see what these conditions were ; and, that being so, the question 
 comes to be, whether the plaintiff is not precluded from setting up that 
 Mr Harris, who acted for her in taking that ticket, never looked at the 
 face of the ticket or bestowed a thought on what the conditions were ; in 
 other words, whether, by depositing the goods and taking this ticket, he 
 did not so act as to assert to the defendants that he had looked at and 
 read the ticket and ascertained its terms, or was content to be bound by 
 them without ascertaining them, and so induced them to enter into the con- 
 tract with him in the belief that he had assented to its terms. I think he 
 has so acted. It is true that Lord Chelmsford and Lord Hatherley, in 
 Henderson v. Stevenson^, are reported to have thrown out an opinion that 
 the contract was complete on the payment of the passage money, and that 
 the ticket was but a receipt for that money. This certainly is no part of 
 the decision of the House, and, indeed, seems to be contrary to the 
 view taken by the Lord Chancellor. I will not inquire at present how far 
 what was suggested by those noble lords may or may not be just when 
 applied to a passenger going by a public conveyance, which was the case 
 before the House, but is not the case before us, and on which, therefore, 
 we are not required to express an 023inion ; but, with every respect for 
 their authority, I cannot think it applicable to the case of a person 
 depositing goods with a company who were in no way bound to receive 
 them, and contemporaneously receiving a ticket which he knew was to be 
 given up when the goods were demanded back. I think it would be 
 as reasonable to allow the holder of a bill of lading, or of a wharfinger's 
 > Law Kep. 2 H. L., Sc. 470.
 
 CnAP. l] HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. O") 
 
 receipt, or a dock warrant, to any that lie thought this was only a receipt 
 for tiie goods, and not a contract as to tlieir carriage or custody. This, I 
 think, cannot be allowed. I will not now inquire whether the question, 
 whether the contract has been reduced into writing, is one of those 
 preliminary questions wliich, according to Bnrl.ktt v. Smith', are to be 
 decided by the judge, or one of tliose to be decided by tlie jury. I 
 did express an opinion in Peek v. North Staffordshire Ky. Co.' that it was 
 for the judge. As we are both judges and jurors in tliis case, it is 
 not necessary to inquire in which capacity we decide tlie question. 
 
 Tlie defendants, as a railway company, are not bound to receive goods 
 at all for custody ; they give notice that they will not receive them by any 
 of their servants in general, but any one wishing to deposit goods with 
 them must go to a particular office, there pay the proper remuneration, 
 and receive a ticket. No man can come to that office without knowing so 
 much. Few can come without knowing that the ticket is to be kept and 
 produced when the goods are taken away, a term which would not 
 be implied by law if the ticket were merely a receipt for tlie money, and 
 Mr Harris did in fact know this. 
 
 It is clear that the defendants meant that the ticket should be the 
 contract ; what more could be required to justify their servants, as reason- 
 able men, in believing that the person bringing the goods and paying the 
 money, as part of the same transaction, receiving and carrying away tlie 
 ticket, meant to assent to tlie terms in tlie ticket and to induce them 
 to receive the goods on those terms? I doubt much — inasmuch as the 
 railway company did not authorize their servants to receive goods for 
 deposit on any other terms, and as they had done nothing to lead the 
 plaintifi" to believe that they had given such authority to their servants so 
 as to preclude them from asserting, as against her, that the authority was 
 so limited — whether the true rule of law is not that the plaintiti' must 
 assent to the conti-act intended by the defendants to be authorized, or 
 treat the case as one in wliich there was no contract at all, and con- 
 sequently no liability for safe custody : see Belfast and Ballymena Railway 
 v. Keys^. I thiidi, as at present advised, the proper direction to a jury in 
 such a case as this would be that, if they believed these undisputed facts, 
 they ought to find that the terms were binding on the plaintiff. This we 
 need not decide, but wliere I am to act as both judge and juror I liave no 
 hesitation in so finding. 
 
 The second question which arises depends entirely on tlie true construc- 
 tion of the conditions. 
 
 If I could agree with my Brother Lush that the meaning of tlie con- 
 tract is that the defendants are to place the luggage in some separate 
 warehouse to which none but the defendants or tlieir servants had access, 
 
 1 11 M. & W. 483. 
 
 = 10 H. L. C. 473, at pp. 517— .51« ; 32 L. J. (Q.B.) 241, at p. 253. 
 = 9 H. L. C. 55G. 
 F. 5
 
 ()G HARRIS V. THE GREAT WESTERN RAILWAY COMPANY. [CHAP. I 
 
 SO that the placing them in tlie vestibule was a breach of contract, 1 
 should be inclined to agree in thinking that the defendants are liable 
 to make good the loss arising from that breach of contract, on the principle 
 of Daris V. Garrett^, that the plaintift' could not qualify his wrong; or, as 
 I should prefer to enunciate the same principle, that the condition 
 relieving them from liability for a loss applies to a loss occurring whilst 
 they are carrying out the contract, not to one incurred wlien acting 
 in \-iolation of it. Lyon v. Melh" seems to me to proceed upon the ground 
 that the condition exempting the owners of the lighter from liability for 
 any loss, unless such loss was occasioned by negligence in the master and 
 crew of the vessel, could not be construed as exempting them from loss 
 occasioned by their own default, and seems to me not applicable to such a 
 case as the present. Such was the construction put on that decision 
 by Coleridge and Erie, JJ., in Chippendale v. Lancashire and Yorkslih-e 
 Ry. Co.', and, I think, by the Court of Exchequer in McManus v. Lan- 
 cashire and Yorkshire By. Co.*. 
 
 But in the present case I read the contract as being to keep safely, i. e. 
 with reasonable and proper care in any way which to the defendants 
 seemed best, and to deliver up the goods on the production of the ticket if 
 brought at the proper office hours to the cloak-room. I do not think that 
 depositing the luggage in the vestibule would have been any breach 
 of contract, if the defendants had taken reasonable precautions to protect 
 the luggage whilst placed in the vestibule from danger, as, for instance, by 
 leaving a competent person to stand sentry over them till it was conve- 
 nient to remove them to a more secure place. They would, if these parcels 
 were under the value of 51., be in my opinion liable, not because they 
 placed them in the vestibule, but because they took no care of them when 
 there. I read the contract as being to take reasonable care of the luggage, 
 and to be responsible for any loss occasioned by that want of care, with, 
 in effect, a proviso that, inasmuch as the remuneration is very small and 
 the loss may be very great, the defendants shall not be responsible for loss 
 if the goods exceed 51. in value, unless the value is declared and paid for. 
 So construed, the condition protects the defendants in the present case. 
 
 This question is of much less importance than the first, as the condi- 
 tions can easily be altered if the intention of the defendants is not 
 exjDressed on them, but it would equally decide this particular case. 
 
 In my opinion the judgment ought to be for the defendants, and, 
 as Mellor, J., agrees with me, the judgment of the Court will be for the 
 defendants. 
 
 Judgment for the defendants. 
 
 ' C Bing. 716. = 5 East, 428. ^ 21 L. J. (Q.B.) 22. 
 
 " 2 H. & N. 702; 27 L. J. (Ex.) 201 ; 4 H. & N. 327 ; 28 L. J. (Ex.) 353.
 
 CHAP. l] HURKE V. THE SOUTH EASTERN RAILWAY COMPANY. 67 
 
 BURKE V. THE SOUTH EASTERN RAILWAY COMPANY. 
 
 In tue High Court of Justice, November 26, 1879. 
 
 [Eeported in 5 Common Pleas Division, 1.] 
 
 Motion for judgment. 
 
 Action to recover damages for personal injury cau.sed to tlie plaintiff' 
 through the negligence of the defendants. 
 
 The trial took place before Coekburn, C.J., and a jury, when it 
 appeared that the plaintiff liad taken from the defendants an ordinary 
 cheap return ticket consisting of a small paper book with eight leaves. 
 On the cover, or outer leaf, wliich formed the first page, was printed 
 the numlier of the ticket, and the words, " South Eastern Railway Cheap 
 return ticket. London to Paris and back. Second class. Available 
 by night-service only. This ticket is available for 14 days, including 
 the day of issue and expiry. Example. A ticket issued on the 1st of 
 the month will be available for the return journey up to and including the 
 14th. Available for the return journey by the South Eastern or London, 
 Chatham, and Dover Railways." Inside the cover, that is to say, on 
 the second page, statements were printed that "The cover without the 
 coupons or the coupons without the cover, are of no value," and that 
 " Each company incurs no responsibility of any kind beyond what arises 
 in connection with its own trains and boats, in consequence of passengers 
 being 'booked' to travel over the railways of other companies. . ." The 
 inside leaves were coupons, each of which was to be given up • at a 
 difterent stage of the journey. The plaintifl" wliile travelling under this 
 ticket on a railway in France was injured through the negligence of 
 the railway servants. He brought tliis action against the defendants, 
 and gave evidence to the effect that, although he had often made the 
 same journey with similar tickets, he had never read and did not know of 
 the condition. 
 
 The defendants did not dispute the truth of his statement, but relied 
 on the condition. 
 
 The learned judge directed the jury, that if it was brought to his 
 notice it would be a defence, and adopting a form of question suggested 
 by the Court of Appeal in Parker v. South Eastern Ry. Co. ', asked the 
 jury whether what was done by the company was reasonably suificient 
 to bring the condition to the notice of the plaintiff. The jury found that 
 it was not, and ga^•e their verdict for him with 250/. damages. 
 
 Mclntyre, Q.C. (Barnard, with him), for the plaintiff. On tlic 
 finding of the jury the plaintiff is entitled to judgment. Henderson v. 
 
 > 2 C. P. D. 416. 
 
 .5—2
 
 G8 BURKE V. THE SOUTH EASTERN RAILWAY COMPANY. [CHAP. I 
 
 Stevensoti^ is in [loint. Tliere was in that case a contract on the face 
 of a ticket, with no reference to a condition on the back, and the House 
 of Lords held that the passenger who had not looked at the back was not 
 bound by the condition. The judgment of Lord Cairns, C.^ is con- 
 clusive in favour of the present plaintifT. 
 
 [Lord Coleridge, C.J. I thouglit that I followed Henderson v. 
 Stevenson^ in Parker v. South Eastern Ry. Co.^ but that case 
 was overruled by the Court of Appeal, where Bramwell, L.J., gave a 
 judgment, based on reasoning which seems to me unanswerable, in favour 
 of the defendants.] 
 
 The condition must be brought to the traveller's notice. The Lord 
 Justice agrees that if the question whether the plaintiff ought to have 
 read the condition is one of fact it should be left to the jury, but, 
 no doubt, suggests that it is a question of law. In Parker v. South Eastern 
 Ry. Co.^ the words "See back" were on the face of the ticket. Here, 
 however, there was nothing to call the attention of the plaintifl' to the 
 condition on the inside of the cover. He did not read it and "was 
 certainly under no obligation to read the ticket, but was entitled to 
 leave it unread if he pleased " : see per JMellish, L. J., at p. 423. The 
 contract was that he was to be carried to Paris and back and to deliver 
 the coupons at the different stages of the journey. 
 
 [LiNDLEY, J. Harris v. Great Western Ry. Co.* was a contempo- 
 raneous case, but decided contrary to Parker's Case^. 
 
 Lord Coleridge, C.J. Both the Queen's Bench Division in the one 
 case and the Court of Appeal in the other, while admitting the authority 
 of Ilenderson v. Stevenson^, distinguish it for various reasons.] 
 
 It governs the present case. 
 
 Sir H. Giffard, S.G. {A. M. B. Bremner with him), for the defendants, 
 was not heard. 
 
 Lord Coleridge, C.J., after stating the case and the terms of the 
 ticket continued : — The defendants say that the injury complained of 
 having happened in France, and beyond the limits of their own line, they 
 are not responsible. Prima facie that would be a complete answer to the 
 action, but the Lord Chief Justice, who tried the case, having before liim 
 various decisions of this and other Courts on the subject of the respon- 
 sibility of railway companies when they issue printed contracts, took the 
 opinion of the jury on certain points, one of which was, whetlier there was 
 reasonably sufficient notice of this term of the contract given by the 
 defendants to the plaintiff, and the jury found in the negative. For the 
 purposes of this decision the jury may be taken to have found tliat the 
 plaintiff did not know of the condition. Certainly tliere was no affirma- 
 
 > Law Kep. 2 H. L. (Sc.) 470. ^ Law Eep. 2 H. L. (Sc.) at p. 475. 
 
 3 1 C. P. D. 618 ; 2 C. P. D. 416, at p. 12G. •» 1 Q. B. D. 515.
 
 CHAP. l] BURKE V. THE SOUTH EASTERN RAILWAY COMPANY. 69 
 
 tive evidence to shew that he liiid read or knew of this term. In my 
 opinion it does not much matter' whicli form of expression, viz., " term," 
 or "condition," is used. I will take the tinding of the jury most strongly 
 against the defendants, and assume that the plaintiflF was admitted not to 
 have read and not to know of tliis condition, however improbable such 
 a state of things was, and I will decide, as if I believed it, whether I do or 
 do not. The question is, Does tliat, under the circumstances, aflbrd any 
 defence ? In my opinion it affords none. The contract, as I understand 
 it, can only be this little book, and the whole of this little book. This is 
 the contract, and these are the terms on which the defendants agreed 
 to take the plaintiti' to Paris and back, and in an ordinary case that would 
 be conceded. But it is supposed that on this peculiar subject of railway 
 passenger , the contrary has been decided by the decision of the higliest 
 ti'ibunal. I should, of course, submit to follow the authority of the case of 
 Henderson v. Stevenson', if it applied, whether I agreed with it or not, and 
 should indeed have no power to do otherwise than to decide in accordance 
 with it. It was attempted to assimilate this case to Henderson v. 
 Stevenson', which shortly stated was this: There was a conti'act to 
 take a passenger from Dublin to Whitehaven, and a condition printed 
 on the other side. On the same side of the paper or card on ^\'hich 
 " Dublin to Whitehaven " was printed, there was no reference at all to 
 what was printed on the other. It was admitted that if both sides were 
 taken as the contract, the defendants were entitled to succeed, but it was 
 said that one side only was to be taken as the contract, because there was 
 no reference to the other side, and that the jury must be taken to have 
 found that the plaintiff had a right to assume, and did assume, that the 
 one side contained the whole contract, and the terms on which he was 
 agreeing with the defendants. That case was one of a bailment of 
 luggage to the defendants for reward, and on the face of the paper there 
 would arise an ordinary common law contract. The House of Lords held, 
 in effect, that there was no evidence to shew that any other than the 
 common law contract had been entered into by means of that piece of 
 paper. The decision is based on the view which the House of Lords took 
 of the facts. The House of Lords assumed that the whole contract was 
 contained on the one side of the one piece of paper. Now, if the House 
 of Lords would have come to the conclusion that the contract in such a 
 case as this was really limited by the first side of the first leaf of tliese 
 pages their decision in Henderson v. Stevenson' would be binding on us. 
 But I think the facts here are entirely different, and I see the widest 
 distinction between the facts of the one case and the other. Here is a 
 small book with many pages, and it is admitted that the whole of the 
 leaves are, during the continuance of the contract, to be made use of, and 
 the passenger cannot turn over the first sheet and make use of tli(> 
 first coupon without having under his eyes tlie condition on which 
 1 Law Rep. 2 H. L. (Sc.) 470.
 
 70 BURKE V. THE SOUTH EASTERN RAILWAY COMPANY. [OHAP. I 
 
 tl\e defendants rely. It cannot be contended that the first slieet 
 forms the whole contract because it was admitted that the coupons 
 form part of the contract. Tlien if the first page and all the coupons 
 form part of the contract, on what ground is page 2 to be rejected 1 
 The defendants miglit fairly say : " This is the contract, we contract 
 on no other terms than these, the plaintifl" has taken this contract. 
 Fraud is not suggested, and by the ordinary application of eyesight 
 he might have seen the condition." The mere fact of his not choosing 
 to read, or even of his not having read the term, which was not 
 concealed from him, is no ground whatever for rejecting that any more 
 than any other part of the contract. So, bona fide accepting and not 
 presuming to doubt the authority of Henderson v. Stevenson^ in cases 
 brought within it by their facts, I am of opinion that this case, at 
 least, is not within it. We are asked to say that the condition is not 
 part of the contract, because there is not written in large letters at 
 the bottom of the first page, " Read the next page." This in efi'ect 
 is the contention of the plaintifi". There is neither f)rinciple nor authority 
 for such a proposition, and I think that the defendants are entitled 
 to judgment. 
 
 LiNDLEY, J. I am of the same opinion. The question depends 
 entirely on the answer to the inquiry. What was the contract, if any, 
 into which the parties entered 1, The only contract entered into was 
 thus formed : the plaintifi' paid a sum of money for a journey to Paiis 
 and back, and he received this ticket. The jury have not found what 
 the contract was, the question was not put to them in that shape, but 
 they may be assumed to have found that the plaintifi' did not know 
 of the restrictive condition, and they have found that suflicient notice 
 of it was not given to him. That leaves open the question what was 
 the contract '? Can the plaintiff' make out a contract without that 
 condition % I think it impossible for him to do so. If the jury had 
 found that the contract was what was printed on the first page or 
 on the coupons without the cover, the verdict would be so manifestly 
 against the evidence that it could not stand. But they have not so 
 found. I think that the answer to tlie question. What was the contract ? 
 is, "Here, in this small book, is the contract." The facts of Henderson 
 V. Stevenson^ were diff'erent. On the face of the cai-d in that case was, 
 " Dublin to Whitehaven," and nothing else, and on the back a condition. 
 The House of Lords, as it were, split it in two, and said there was 
 room to find that the contract was what appeared on the face of the card. 
 But it would be impossible to split this contract up. It does not admit of 
 it. Its physical form is altogetlier diff'erent. On these grounds I think 
 that the plaintiff' is not entitled to judgment and that the defendants 
 are, because the plaintiff' cannot sue on a contract and ignore one of 
 the terms. Judgment for tlie defendants. 
 
 ' Law Rep. 2 H. L. (Sc) 470.
 
 CHAP. l] WATKINS V. IIYMILL. 71 
 
 WATKINS V. RYMILL. 
 In the High Court of Justice, December 18, 1882, January 1G, 1883. 
 
 [Reported in 10 Queen's Bench Divisioti, 178.] 
 
 Rule calling on the plaintiff to shew cause why the vevdic^t foiuid 
 for liim in the Mayor's Court, London, should not be set aside and 
 a verdict entered for the defendant, or ^^■hy a new trial should not 
 be liad on tlie ground of misdirection. 
 
 Dec. 18. J. J. Sims, shewed cause. 
 
 J. A. McLeod, Q.C. (C Hall, Q.C., and Dicheiis, with him), in support 
 of the rule. 
 
 Cur. adv. vult. 
 
 The facts and arguments sufficiently ajipear in the judgment. 
 
 Jan. 16. The judgment of the Court (Hawkins, J., Stephen, J., 
 and Watkin Williams, J.), was delivered by 
 
 Stephen, J. This case was argued before my Brothers Hawkins 
 and Watkin Williams, and myself, at the last Sittings, on a rule to 
 shew cause wliy the verdict found in the Mayor's Court for the 
 plaintiff should not be set aside and a verdict entered for tlie defendant, 
 or why a new trial should not be had on the ground of misdii'ection. 
 
 The facts of the case were as follows : The plaintiff was the owner of a 
 waggonette and the defendant was the keeper of a repository for the 
 sale on commission of horses, carriages, and harness. On the 11th 
 of May, 1878, the plaintiff took the waggonette to the repository 
 and left it to be sold, recei\dng for it a receipt on a printed form 
 which was in these words : " Herbert Rymill's Royal Repository, 
 Barbican, for the sale of horses, carriages, harness, ifec. Sales by auction 
 
 every Tuesday and Friday at 11. Received from , subject to the 
 
 conditions as exki/nted on the j)re7nises " (these words were italicized). 
 "The proceeds paid on Monday between the hours of eleven and four 
 upon the production of the receipt signed by the owner, or forwarded by 
 post if desired." 
 
 The conditions exhibited on the premises were printed conditions, 
 exliibited in conspicuous positions in many parts of the premises. Tlie 
 following were the conditions bearing upon the present case : — 
 
 " 10. Should any liorse or other property sent to this repository 
 remain over one month the proprietor shall be at liberty to sell the 
 same by public auction only, with or without notice to the owner, 
 unless all expenses are previously paid. All horses, carriages, carts, 
 &c., sent to this repository for sale remain at the risk of the owner." 
 
 Amongst the terms were the following : — 
 
 "Two shillings and sixpence per week standing for four wheel 
 carriages and Hansom cabs. . . . Two shillings and sixpence for washing 
 each cari-ia"0.
 
 72 WATKINS V. RYMILL. [CHAP. I 
 
 "No horses or other property allowed to be taken away until the 
 keep, sale, and other expenses are paid." 
 
 The plaintiff swore that lie did not read the receipt, but put it 
 in his pocket without noticing it. About a month after leaving the 
 waggonette the plaintiff called and asked after it. He was told (but 
 not so far as it appeared by the manager or by any person authorized 
 to tell him) that the waggonette was sold, and that the settling day 
 was Monday. He returned on Monday and saw the manager, who told 
 him he must bring the receipt. He said he had lost it, but that they 
 must have his name on their books. They refused to go into the matter 
 without the receipt. The receipt was not found until the 25th of 
 October, 1881, and during this time the plaintiff took no steps e.xcept 
 calling two or three times to make inquiries. In November, 1881, 
 the plaintiff through his solicitor applied for the waggonette, and found 
 that it had shortly before been sold for 9^. 19s. 6d, of which the whole 
 except 6s. lOrf. was due for charges under the terms stated in the 
 conditions quoted. The defendant sent the plaintiff a post office order for 
 16s. lOd., mistaking the amount of his charges, and thus considered 
 himself to have overpaid him. 
 
 The defendant's counsel argued that the Common Serjeant, who sat as 
 judge, ought to direct the jury on these facts to find for the defendant, 
 but the Common Serjeant held that the question was one "for the jury 
 whether the defendant had or had not given the plaintiff reasonable 
 notice of the conditions." This question the jury answered in the 
 negative, and gave a verdict for the plaintiff for 21?. 
 
 The question whether the direction given to the jury was correct 
 depends upon a review of a variety of authorities which it is not 
 altogether easy to reconcile. We will examine them in the order of their 
 dates. Passing over earlier decisions which bear upon the subject 
 indirectly, we may notice first the case of Va7i Toll v. South Eastern 
 Rj. Co.\ decided in 1862. In this case it was decided in substance 
 that a person who deposited a bag at a cloak-room was bound by a notice 
 printed on the back of a ticket which she received when she made 
 the deposit and produced when she demanded the bag, which had been 
 given to another person. In this case Erie, C.J., based his judgment for 
 the defendants on the fact, amongst others, that the defendants had used 
 all reasonable means to make known to the depositors, and among them to 
 the plaintifl", the terms on which they received deposits. Willes, J., said'': 
 " Assuming that the plaintiff did not read the terms of the conditions, it 
 is evident that she knew that they were there, and that she was satisfied 
 to leave the goods uj on those terms. The obvious result of this is that 
 either she must be taken to have assented to the temis, or, if she did not 
 assent, she knew that there were terms wliich the railway company 
 intended to stipulate for.'' 
 
 1 12 C. B. (N.S.) 75. ■ 12 C. E. (N.S.) at p. 87.
 
 CHAP. l] WATKINS V. RYMILL. 73 
 
 The next is Lewis v. McKee'. The facts of this case were dissimilar to 
 the other, and need not be stated ; but in the course of his judjpnent upon 
 tliem, wliicli was that of the Excliequer Chamber, Willcs, J., restates 
 the principle involved in Van Toll v. South Eastern Ry. Co.' in such a 
 way as to imply (though he does not exactly state) that upon the delivery 
 by one of two contracting parties to the other of a written document 
 stating the terms on which the party wlio produces it proposes to contract, 
 tlie other party acts at his peril if he does not read it. 
 
 The next case in order of time is Zunz v. South Eastern Jlij. Co.', 
 decided in 1869. In this case the railway company sought to protect 
 themselves against liability for the loss of a passenger's luggage between 
 Calais and Paris by a condition printed on a ticket to Paris exempting 
 themselves from liability for losses otf their own line. The Court of 
 Queen's Bench were unanimously of opinion that the condition on the 
 ticket was part of the contract, and Cockburn, C.J.'', laid down tlie law as 
 follows : " However harsh it may appear in practice to hold a man liable 
 by the terms and conditions which may be inserted in some small print on 
 his ticket, which he only gets at the last moment after he has paid his 
 money, and when nine times out of ten he is hustled out of the place 
 at which he stands to get the ticket by the next comer — still we are 
 bound by the authorities to hold that when a man takes a ticket with 
 conditions on it, he must be presumed to know the contents of it and 
 to be bound by them." 
 
 Cockburn, C.J., does not say to what authorities he referred : probably 
 Van Toll v. South Eastern Ry. Co.^ and Lewis v. McKee^ would be two of 
 them. They are the strongest cases in that direction which we have been 
 able to find, though they do not appear to have been cited in the 
 argument, which turned to a great extent upon other topics. 
 
 However this may be, the principle thus stated would be sufficient 
 to decide tiiis case if the decision stood alone. It is in some respects 
 a stronger case against the defendant than the present one, as the 
 power of railways to impose conditions on passengers is to a considerable 
 extent limited by statutes which have no application to the case of 
 repositories. There have, however, been several subsequent decisions 
 which, though not inconsistent with Zunz v. South Eastern Ry. Co. ", shew 
 that it cannot be regarded as a complete statement of the law. 
 
 The lirst of these which may be noticed is Henderson v. Stevenson'', 
 decided in 1875. In this case a passenger by a steamboat took a 
 ticket on the face of which appeared the words " Dublin to Whitehaven." 
 On the back were the words, " The company incurs no liability in respect 
 of loss, injury, or delay to the passenger or to his luggage, wiicther arising 
 from the act, neglect, or default of tlie company or their servants or 
 
 1 Law Rep. 4 Ex. 58. " 12 C. B. (N.S.) 75. 
 
 » Law Ecp. 4 Q. B. 539. ' Law Rep. 4 Q. B. at p. :,il. 
 
 = Law Rep. 2 H. L., Sc. 470.
 
 74 WATKINS V. RYMILL. [CHAP. I 
 
 otherwise." Tliere was no reference on tlie front of tlie ticket to tlie back 
 of it, and tlie plaintiff swore that he did not look at it. It was held that 
 the notice did not afl'ect the company's liability. The facts of the case 
 were so peculiar that it can hardly foiin a precedent for any other. It 
 certainly does not appear that the steamboat company were guilty of fraud, 
 but it does appear that they attempted to rid themselves of a common law 
 liability by annexing to their contract to carry a condition most unusual in 
 itself, and to which the course adopted by them would not naturally call 
 the attention of the other party to tlie contract. The principle upon which 
 the case was decided is expressed in a very few words liy Lord Cairns ' : 
 " The question does not depend upon any technicality of law oi; upon 
 any careful examination of authorities. It is a question simply of 
 common sense. Can it be held that when a person is entering into a 
 contract containing terms which de facto he does not know, and as to 
 wliich he has received no notice, that he ought to inform himself upon 
 them'? (the words "he is to be bound by those terms," or some equivalent, 
 appear to have dropped out of the report). " It appears to me impossible 
 that that can be held." It may be added that though the case was 
 decided mainly on this ground, several of their Lordships, and in 
 particular Lord Chelmsford and Lord Hatherley, entertained doubts as to 
 the right of the defendants to attach such a condition as the one in 
 question to the contract to cany. Lord Chelmsford says "that of course 
 a person may if he chooses take the whole risk of the voyage on himself, 
 but the company by a mere notice without such assent can have no right to 
 discharge themselves from performing what is the very essence of their duty." 
 The circumstances of the present case have an analogy to those 
 of Henderson v. Steve?ison^. The notice was printed on the face of 
 the receipt, and formed a prominent part of it. The circumstances 
 of the contract were such that any man of ordinary intelligence must 
 have known that special terms as to its execution must in the natui'e 
 of things be made, and it appears to us that by handing to the plaintiff 
 the receipt in question the defendants called his attention to the subject 
 as pointedly as if their clerk had said " Read this. It expresses the terms 
 on which we are ready to take your waggonette." 
 
 The next case to be considered is Harris v. Great Western Ry. Co.^, 
 decided in 1876. In this case the luggage of a person who had been 
 a passenger by the Great Western Railway was deposited by her brother 
 on her behalf with the servants of the railway at the cloak-room, and the 
 depositor received a ticket which on its face enumerated the articles 
 received, stated the charge at 2d. for each, and ended with these words, 
 
 " Left in the name of , and subject to the conditions on the other 
 
 side." On the back were conditions, one of which limited the liability 
 of the company to 5/. for each package, unless a certain higher rate were 
 
 1 Law Eep. 2 H. L., Sc. at p. 475. - Law Eep. 2 H. L., tic. i70. 
 
 3 1 Q. B. D. 515.
 
 CHAP. l] WATKINS ?'. IIYMILL. 75 
 
 charged. Tlie person wlio deposited tlie articles said tliat lie did not read 
 the conditions on the back of tlie ticket, but admitted that he " believed 
 there were some conditions." 
 
 The judges of the Queen's Bench Di\-ision held tliat the plaintiff was 
 bound by the conditions on the back of the ticket. The judgment 
 of Lord Blackburn in this case seems specially worthy of attention, 
 though there was no difference of opinion in the Court. 
 
 Lord Blackburn elaborately distinguishes the case from Henderson 
 V. Stevenson^ on grounds similar to tjiose which we liave already stated. 
 The shortest expression of Ms view is on p. 531. He there says that 
 in Henderson v. Hievenson ' there was nothing to shew that the steamboat 
 company would believe from the conduct of the passenger that he had 
 represented to them that he had read or looked at the back of tlie ticket, 
 and in point of fact he had not. In the following page Lord Blackburn 
 states the reasons which led him to the conclusion that in the case 
 then before him the plaintiff's agent, "by depositing the goods and 
 taking this ticket, did so act as to assert to the defendants that he 
 had looked at and read the ticket, and ascertained its terms, or was 
 content to be bound by them without ascertaining them, and so induced 
 them to enter into the contract with him in the belief that he had assented 
 to its terms." One principal reason for this conclusion is as follows': 
 "The defendants as a railway company are not bound to receive goods 
 at all for custody ; they give notice that they will not receive them by 
 any of their servants in general, but anyone wishing to deposit goods with 
 them must go to a particular office, there pay the proper remuneration, 
 and receive a ticket. No man can come to that office without kno^ving 
 so much. Few can come without knowing that the ticket is to be 
 kept and produced when the goods are taken away, a term which 
 would not be implied by law if the ticket were merely a receipt for 
 the money, and Mr Harris did in fact know this. It is clear that the 
 defendants meant that the ticket should be the contract ; wliat more 
 could be required to justify their servants as reasonable men in believing 
 that the person bringing the goods and paying the money as part of the 
 same transaction, receiving and cariying away the ticket, meant to 
 assent to the terms in the ticket, and to induce them to receive the 
 goods on those terms 1 " 
 
 It is obvious that, mutatis mutandis, every word of this would apply 
 to the present case. The only remaining point in this case which 
 requires notice is that Lord Blackburn observes : " I think as at present 
 advised tlie proper direction to a jury in such a case as this would be that 
 if they believed these undisputed facts they ought to find that the teniis 
 were binding on the plaintiff. This we need not decide, but where I am 
 to act both as judge and juror," tlie Court had the power to draw 
 inferences of fact, " I have no hesitation in so finding." 
 
 ' Law Rep. 2 H. L., Sc. 470. = 1 Q. B. D. at p. 533.
 
 76 WATKINS V. EYMILL. [CHAP. I 
 
 This case appears to us to be precisely in point in reference to 
 tlie matter now before us, except as to tlie question whether the Common 
 Serjeant ought to liave directed a verdict for the defendant, as to which 
 Lord Blackburn's expression of opinion is only a dictum. It is however 
 necessary to refer to two other cases in order to shew that they do 
 not interfere with this view. 
 
 The first of these is Parker v. South Eastern Ry. Co.^ which was 
 decided in 1877. Gahell v. South Eastern Ry. Co.' was decided at the 
 same time by the same judgment, the facts and directions given to 
 the jury being identical in the two cases. 
 
 The facts in each case closely resembled those of Harris v. Great 
 Western Ry. Co.- In each case a bag was left at a cloak-room, %1. 
 was paid and a ticket received, which had printed upon it the words 
 " see back." On the back were conditions of which one was, " The 
 company will not be responsible for any package exceeding the value 
 of \Ql." Each plaintiff denied that he had read the words on the 
 ticket or seen a printed notice to the same effect hung up in the 
 cloak-room. In each case the judge asked the jury (1) Did the plaintiff 
 read or was he aware of the condition'? (2) Was the plaintiff under 
 the circumstances under the obligation iii the exercise of reasonable 
 and proper caution, to read or make himself aware of the condition 1 
 In each case the jury answered both questions in the negative. In each a 
 rule for a new trial or for judgment was refused by the Di\'isional 
 Court, and in each the case came before the Court of Appeal. Of tlie 
 three judges who heard the case, MeUish, L.J., held, that there had 
 been a misdirection, because the jury had not been asked whether 
 the railway company did what was reasonably sufficient to give the 
 plaintiff notice of the condition. Baggallay, L.J., was of the same 
 opinion, thougli he expressed it somewhat differently, but each of 
 these learned judges appears to have been of opinion that the importance 
 to be attached and the effect to be given to a docunient of this nature 
 must depend upon the character of the particular contract which it 
 is alleged to constitute. As extreme cases, Mellish, L.J., suggests 
 on the one hand the case of a turnpike ticket wliich a person dri\'lng 
 tiirough the gate on paying the toll would naturally not read, and on 
 the otlier hand that of a bill of lading on which a person shipping 
 goods would be held liable, although he might swear that he had never 
 read it and did not believe it to contain conditions as to the terms 
 of the contract of carriage. Lord Bramwell, then Lord Justice, took 
 a view much more decisively in favour of the defendants. The case 
 lie said was precisely the same as if the defendant's servants had in 
 so many words asked the plaintiffs to read the tickets, in which case 
 as he says the plaintiffs would have to take the consequences if they 
 did not read. "Why is there printing on tlie paper," he said, "except 
 > 2 C. P. D. 416. = 1 Q. B. D. 515.
 
 CHAP, l] WATKINS IK RYMtLI,. 77 
 
 that it may be read? " The putting of it into their liands was equivalent 
 to saying, " Read that." " Could the defendants practically do more 
 than they did." He sum.s up his judgment thus. " The defendants 
 put into the hands of the plaintifl" a paper with pi-inted matter on it 
 whieli in all good sense and reason must be supposed to relate to 
 the matter in hand. This printed matter the plaintifl" sees and must 
 either read it and object to it if he does not agree to it, or if he does 
 read it and not oljject or does not read it, he must be held to consent 
 to it." 
 
 Lord Bramwell would upon these grounds have given judgment for 
 tlie defendants, but he agreed that there ought at least to be a new 
 trial. If the judgment of Lord Bramwell in Parker v. South Eastern 
 Ry. Co.' is accepted it appears to us to be an authority dii-ectly in 
 point in favour of tlie defendants in the present ease, but the other 
 two judges took a somewhat different view of the subject, and 
 Mellish, L.J., suggested the question which he considered proper for 
 tiie jury. This question ditTers considerably from the one actually put 
 by the Common Serjeant in this case. It is one thing to ask whether 
 a defendant has done what is reasonably sufficient to give the plaintiff 
 notice of a condition, and quite another to ask (as the Common Serjeant 
 did) whether he has given liim reasonable notice. 
 
 The latest ca.se on the subject, and the last which we need notice, 
 is Burke v. South Eastern Ry. Co.', decided in 1879. In this case 
 the plaintifl' took a ticket from London to Paris from the defendants. 
 On the outside of the cover was " Cheap return ticket London to Paris and 
 back, second class," and other matter, but no reference to the inside 
 of the cover. On the inside was a condition limiting the responsibility 
 of the defendants to their own trains. The plaintifl' was injured while 
 travelling in France. He sued the defendants, and said he had not 
 read the condition and did not know of it. Cockbum, C.J., asked 
 the jury the question suggested in Parker v. South Eastern Ry. Co. ', 
 and they answered it in favour of the plaintiff. Tlie defendants moved 
 to have judgment entered for them and this was done, the Divisional 
 Court holding that the book was the contract, and that the condition 
 was an indivisible part of it. The judgment in tliis case can hardly 
 be supported by any principle short of that laid down in Zunz v. South 
 Eastern Ry. Co.^, if indeed it does not go further. 
 
 Such being the state of the authorities, the question is how they 
 bear on the case now to be decided. In a few words the matter appears 
 to us to stand thus. 
 
 The cases relevant to the matter are in order of date : Zunz v. 
 South Eastern Ry. Co.^; Harris v. Great Western Ry. Co.*; Parker v. 
 South Eastern Ry. Co.'; and Burke v. South Eastern Ry. Co.' All 
 
 ' 2 C. P. D. 416. = 5 C. P. D. 1. ^ Law Ecp. 4 Q. B. 539. 
 
 < 1 Q. B. D. 515.
 
 78 WATKINS V. RYMILL. [CHAP. I 
 
 of tlipm are in favour of the defendant except Parker v. South Eastern 
 Ry. Co. ', and of the three judgments in this case that of Lord Bramwell 
 is directly in tlie defendants' favour. To a certain extent the judgments 
 of Mellish and Baggallay, L.JJ., are in favour of the plaLntiif, as they 
 treat the question whether reasonable means to give notice were employed 
 by the defendants as one of fact for the jury, though in another way 
 they are unfavourable as they suggest as the question for the jury one 
 which in this case was not put to them. It must be remembered that 
 the precise question before the Court in Parker v. South Eastern Ry. Co. ' 
 was not whether the question in that case was one of law or of fact, 
 but whether the questions put to the jury by the learned judges at Nisi 
 Prius were proper, which, as all the Court agreed, they were not. 
 
 It must also be observed that in Parker v. SoiUh Eastern Ry. Co. ' the 
 question before the Court related to the common law contract of the 
 bailment of goods for safe custody, 'the nature of which is well known 
 in the absence of special terms agreed to by the parties. The present 
 case relates to a contract of a different kind, namely, the deposit of an 
 article for sale on commission, as to which the terms must necessarily 
 depend upon the agreement of the parties, as none are ascertained by 
 the common law. Besides all the judges in Parker v. South Eastern 
 Ry. Co.^ agreed that the efifect of the delivery of a document stating 
 terms must depend on the nature of the contract to which it related. 
 
 We now proceed to state the principles which we deduce from this 
 examination of the authorities and to apply them to the case before us. 
 Thrown into a general form the result of the authorities considered 
 appears to be as follows. A great number of contracts are in the present 
 state of society made by the delivery by one of the contracting parties to 
 the other of a document in a common form, stating tlie terms by which 
 the person delivering it will enter into the proposed contract. Such a 
 form constitutes the offer of the party who tenders it. If the form is 
 accepted without objection by the person to whom it is tendered this 
 person is as a general rule bound by its contents, and his act amounts to 
 an acceptance of the offer made to him, whether he reads the document or 
 otherwise informs himself of its contents or not. To tliis general rule 
 however there are a variety of exceptions. 
 
 (1.) In the first place, the nature of the transaction may be such 
 that the person accepting the document may suppose, not unreasonably, 
 that the document contains no terms at all, but is a mere acknowledge- 
 ment of an agreement not intended to be varied by special terms. Some 
 illustrations of this exception may be found in the judgments in Parker v. 
 South Eastern Ry. Co. ', and in the language of some of the Lords in 
 Henderson v. Stevenson", though these must be received with caution 
 for reasons given by Lord Blackburn in Ids judgment in Harris v. Great 
 Western Ry. Co.' 
 
 » 2 C. P. D. 41G. 2 Law Rep. 2 H. L., Sc. 470. ' 1 Q. B. D. 515.
 
 CIIAr. l] WATKINS V. RYMILL. 79 
 
 (2.) A second exception would be tlie case of fraud, as, if tlie 
 conditions were printed in sucli a manner as to mislead the person 
 accepting the document. 
 
 (3.) A third exception occurs, if, without being fraudulent, the 
 document is misleading and does actually mislead the person who 
 has taken it. The case of Henderson v. Stevenson' is an illustration 
 of this. 
 
 (4.) An exception has been suggested of conditions unreasonable 
 in themselves or irrelevant to the main purpose of the contract. Lord 
 Bramwell suggests some illustrations of this in his judgment in Parker v. 
 South Eastern Eij. Go.' One is the case of a ticket having on it a 
 condition that the goods deposited in a cloak-room should become tlie 
 absolute property of the railway if not removed in two days. We 
 are aware of no absolute decision on this point, nor is it material to 
 the present case. 
 
 We now come to apply these principles to the case before us. It 
 is obviously within the general rule. Can it be brought under any 
 of the exceptions'? The only one which can apply to it is the one 
 wliich we have put first. Can it be said that the nature of the 
 transaction was such that the plaintiff might suppose, not unreasonalily, 
 that the document contained no terms at all, but was a mere acknow- 
 ledgement of an agreement not intended to be varied by special terms. 
 
 It seems to us impossible to suppose that this can have been the 
 case. The acceptance of a carriage for sale on commission is not a 
 simple contract, the tenns of which are established by the common 
 law in the absence of any special agreement by tlie parties. They 
 must, from the nature of the case, be as special as those of a contract 
 of lease or a bill of lading, and this consideration alone seems to us 
 to establish the conclusion that the receipt and conditions to which it 
 refers constituted the contract between the parties, and that the learned 
 Common Serjeant misdirected the jury when he told them that the 
 question was whether the defendant had given reasonable notice to 
 the plaintiff of the conditions. We may observe that in no view of 
 the case could this direction be upheld. If any question at all were 
 asked it ought to have been whether the defendant took reasonable means 
 to give notice of the conditions to the plaintiff, which is a very different 
 one from that which was actually put to the jury. 
 
 This brings us to the last question in the case. Ought we to enter 
 a verdict for the defendant or to send the case back for a new trial 
 in order that the question suggested by Mellish, L. J., may be put 1 
 We think that we ought to enter judgment for the defendant. The 
 question suggested by Mellish, L.J., may be proper in cases falling 
 under what we ha^e called the first exception to what we apprehend 
 to be the general rule, but this, in our judgment, is not one of those 
 ' Law Eep. 2 H. L., Sc. 470. = 2 C. P. D. -41G.
 
 80 WEEK U. TIBOLD. [CHAP. T 
 
 cases. It resembles rather the cases of Zunz v. South Eastern Ry. Co. ' 
 and Burke v. South Eastern Ry. Co.', in which the ticket itself was 
 held to be the contract. It is in some cases diilicult to say what is 
 a question of law and wliat is a question of fact, but in this case a 
 test may be applied which to us seems conclusive. Suppose tliat the case 
 were sent for a new trial and that the jury, on the undisputed facts, 
 were to find that the defendant had not taken reasonable means to 
 give notice of the conditions to the plaintiff, would it not be our duty 
 to set that verdict aside as being in direct opposition to the evidence 1 
 as being a verdict which, upon the evidence, no intelligent men could 
 justly return? We think it would, and that being so, it seems to follow 
 that the question is one of law and not of fact. It is, in one sense, 
 a question of fact, but it is a question of fact to which, by law, one 
 answer only can be given, and this is the same thing as a question 
 of law. This may be shewn by stating it specifically. The only 
 question which can be called a question of fact is, whether giving a 
 man a printed paper plainly expressing the conditions on which a 
 keeper of a repository is willing to accept a carriage for sale on 
 commission is or is not equivalent to asking the owner of tlie carriage 
 to read that paper, with intent that he should read it when he has 
 a fair opportunity of doing so. This, we think, is a question of law, 
 to be answered in the aflirmative. 
 
 As the result, tlie verdict and judgment for the plaintiS" for 
 2U. will be set aside, and the verdict entered for tlie defendant, 
 with costs. 
 
 Judgment for the defendant. 
 
 WEEK V. TIBOLD. 
 
 In the King's Bench, Trinity Term, 1605. 
 
 [RolU's Abridgement, 6.] 
 
 If there be a communication between A's father and B respecting a 
 
 marriage to be had between A and the daughter of B, and B then affirms 
 
 and declares (nffirme and publish) to A's father that he, B, will give to the 
 
 man who marries his daughter with his consent £100, and A afterwards 
 
 marries B's daughter with his consent ; yet this affirmation and declaration 
 
 of B does not raise a promise on which an action of assumpsit can be 
 
 maintained, for the words spoken do not include any promise. 
 
 Yelverton, in a note of this case', gives as one of the grounds of the 
 decision, "it is not reason tliat the defendant sjiould be bound by such 
 general words, spoken to excite suitors." 
 
 " Law Kep. 4 Q. B. 539. - 5 C. P. D. 1. = Ye!v. 11.
 
 f'UAP. l] TAVLOll /•. liUliWEK. 81 
 
 TAYLOR AND ANOTHER, ASSIGNEES OF WALSH, A 
 BANKRUPT, against BREWER AND OTHERS. 
 
 Lv THE King's Bench, May 8, 1S13. 
 
 [I!fimrtcd in 1 Mmile and S<'lwi/n, 'I'M.] 
 
 Assumpsit to recover a compensation for woi-k done by the banki'ui)t. 
 The defendants composed a committee for the management of the sale of 
 lottery tickets, and the bankrupt was employed in going backwards and 
 foi-wards upon their business. The plaintiffs founded their claim to com- 
 pensation on the following resolution of the committee : 4th Januari/ 1810, 
 at a meeting, ifcc, present, Brewei; iSic, Resolved, that any service to 
 be rendered by Walsh shall after the third lottery be taken into considera- 
 tion, and such remuneration be made as shall be deemed right. Lord Ellen- 
 borough C.J. was of opinion at the trial, that under this resolution it was 
 optional in the committee to remunerate the bankrupt or not, according as 
 they should think right, and therefore nonsuited the plaintifts. 
 
 Park moved to set aside the nonsuit, on the ground that the bankrupt 
 was entitled to some recompense ; inasmuch as an agreement with a 
 person that he should do work, and should have what is right for it, did 
 not import that he should have nothing for his trouble if his employer 
 should be so minded, but that he should have a reasonable reward : it 
 should have been left therefore to the jury to consider what was reasonable, 
 as was done in Peacock v. Peacock'. 
 
 Lord Ellenboeough C.J. In that case the defendant expressly told 
 the plaintiil" that he should have a share in the business, leaving only 
 unsettled what particular share he was to have : but here, I own it struck 
 me, was an engagement accepted by the bankrupt on no definite terms, 
 but only in confidence that if his labour deserved anj-thing he should be 
 recompensed for it by the defendants. This was throwing himself upon 
 the mercy of those with whom he contracted ; and the same thing does not 
 unfrequently happen in contracts with several of the departments of 
 government. 
 
 Grose J. I consider the resolution to import that the committee were 
 to judge whether any or what recompense was right. 
 
 Le Blanc J. It seems to me to be merely an engagement of honour. 
 
 Bayley J. The fair meaning of the resolution is this, that it was to 
 be in the breast of the committee whether he was to have anything, and if 
 anything, then how much. 
 
 Pale refused. 
 
 1 2 Cuuip. N. r. C. 15. 
 F.
 
 82 WINN V. BULL. [chap. 
 
 WINN V. BULL. 
 In* the High Court op Justice, November 19, 1877. 
 
 [Eeported in 7 Chancery Division, 29.] 
 
 On the IGth of March, 1877, the PlaintifT and Defendant entered into 
 and signed the following agreement for a lease of a freehold liouse belong- 
 ing to the Plaintiff : — 
 
 "An agreement entered into between William Winn (the Plaintiff) of 
 the one part, and Edward Bull (the Defendant) of the other part : whereby 
 the said William Winn agrees to let and the said Edivard Uull agrees to 
 take on lease for tlie term of seven years from the 9th day of May, 1877, 
 the dwelling-house and premises kno'mi as _' Wesfwood,' situate in the 
 Avenue, Southampton, as tlie same were lately in the occupation of Mrs 
 Sullivan, at tlie yearly rent of j£180, the first year's rent to be allowed to 
 the said Edward Hull and to be laid out by him in substantial repairs to 
 the property. This agreement is made subject to the preparation and 
 approval of a fonnal contract." 
 
 No fonnal or other contract was ever entered into between the 
 parties. 
 
 The Plaintiff's solicitor subsequently sent the Defendant's solicitor a 
 draft of the proposed lease containing covenants on the part of the 
 Defendant to keep the premises in repair. 
 
 The Defendant objecting to take a lease in this form, a correspondence 
 passed between the parties, which resulted in the Plaintiff insisting that 
 the lease should remain substantially in its original form, whereas the 
 Defendant contended that its terms were contrary to the intention of the 
 agreement, and he ultimately refused to take a lease at all. The Plaintiff 
 thereupon brought this action claiming specific performance of the agree- 
 ment. 
 
 In his statement of defence the Defendant relied upon the Statute of 
 Frauds, alleging that the agreement was conditional only, and that no 
 final agreement for a lease was ever reduced into writing or signed by him 
 or his agent within the meaning of the statute. 
 
 The Plaintiff then joined issue, and tlie action now came on for trial. 
 Chitty Q.C., and Jolliffe, for the Plaintiff, contended that the agreement 
 was sufficiently clear in its terms ; that it was equivalent to an agreement 
 for a lease containing "usual covenants," which would include a covenant 
 to repair ; and that the final clause meant nothing more than that the 
 parties should be bound in a more formal manner. They referred to 
 Rossiter v. Miller ', Crossley v. Maycock -, and Chinnock v. 2Iarchioness of 
 Ehj\ 
 
 > 5 Cb. D. 048. - Law Eep. 18 Eq. 180. ^ 4 V>. J. & S. ()38.
 
 CHAP. l] WINN V. BULL. 83 
 
 Roxlmrgh, Q.C., and Maidlow, for the Defendant, were not lallcd 
 upon. 
 
 Jessel, M.R. : — 
 
 I am of opinion there is no contract. I take it the principle i.s clear. 
 If in tlie case of a pi'oposed sale or lease of an estate two persons agree to 
 all the terms and say, "We will have the terms put into form," then all 
 the terms being put into writing and agreed to, there is a contract. 
 
 If two persons agree in writing that up to a certain point the terms 
 sliall be the terms of the contract, but that the minor terms shall bo 
 submitted to a solicitor, and shall be such as are approved of by him, then 
 there is no contract, because all the terms have not been settled. 
 
 Now witli regard to the construction of letters which are relied upon 
 as constituting a contract, I have alway.3 thought that the authorities are 
 too favourable to specific performance. When a man agrees to buy an 
 estate, there are a great many more stipulations wanted than a mere 
 agreement to buy the estate and the amount of purchase-money that is to 
 be paid. What is called an open contract was fonnerly a most perilous 
 thing, and even now, notwithstanding the provisions of a recent Act 
 of Parliament — the Vendor and Purchaser Act, 1874 — no prudent man 
 who has an estate to sell would sign a contract of that kind, but would 
 stipulate that certain conditions should be inserted for Ids protection. 
 When, therefore, you see a stipulation as to a fomial agreement put into a 
 contract, you may say it was not put in for nothing, but to protect 
 the vendor against that very tiling. Indeed, notwithstanding protective 
 conditions, the vendor has not unfrequently to allow a deduction from the 
 purchase-money to induce the purchaser not to press requisitions wliich the 
 law allows him to make. 
 
 All this shews that contracts for purchase of lands should contain 
 something more than can be found in the short and meagre form of an 
 ordinary letter. 
 
 When we come to a contract for a lease the case is still stronger. 
 When you bargain for a lease simply, it is for an ordinary lease and 
 nothing more ; that is, a lease containing the usual covenants and nothing 
 more ; but when the bargain is for a lease which is to be formally pre- 
 pared, in general no solicitor would, unless actually bound by the contract, 
 prepare a lease not containing other covenants besides, that is, covenants 
 which are not comprised in or understood by the term " usual covenants." 
 It is then only rational to suppose that when a man says there shall be a 
 formal contract approved for a lease, he means that more shall be put into 
 the lease than the law generally allows. Now, in the present case, the 
 Plaintiff says in effect, "I agree to grant you a lease on certain terms, but 
 subject to something else being approved." He does not say, " Nothing 
 more shall be required beyond what I have already mentioned," but 
 " something else is required " whicli is not expressed. Tliat Ijeing so, the 
 agreement is uncerlai]i in its terms and consequently cannot bo sustained. 
 
 G-2
 
 84 HYDE ('. WRENCH. [ciIAP. I 
 
 The distinction between an agreement which is final in its terms, and 
 therefore binding, and an agreement which is dependent upon a stipulation 
 for a formal contract, is pointed out in the autliorities. 
 
 I will take only one of them, Chinnnck v. Mareldoness of Ely ^. There 
 Lord Westhury says': "I entirely accept the doctrine... that if there had 
 been a final agreement, and the terms of it are evidenced in a manner to 
 satisfy the Statute of Frauds, the agreement shall be binding, although tlie 
 parties may have declared tliat the writing is to serve only as instructions 
 for a formal agreement, or although it may be an express term that a 
 formal agreement shall be prepared and signed by the parties." Then he 
 goes on, "But if to a proposal or offer an assent be given subject to 
 a provision as to a contract, then the stipulation as to the contract 
 is a term of the assent, and there is no agreement independent of that 
 stipulation." 
 
 That judgment of Lord Westhury s did not requii'e any approval, but it 
 was appi-Qved of by the Court of Appeal in Rossiter v. jillUer ^. 
 
 It comes, therefore, to this, tliat where you have a proposal or agree- 
 ment made in writing expressed to be subject to a fonnal contract being 
 prepared, it means what it says ; it is subject to and is dependent 
 upon a formal contract being prepared. Wlien it is not expressly stated 
 to be subject to a formal contract it becomes a question of construction, 
 whether the parties intended that the terms agreed on should merely 
 be put into form, or whether they should be subject to a new agreement 
 the terms of which are not expressed in detail. Tlie result is, that I must 
 hold that there is no binding conti-act in this case, and there must there- 
 fore be judgment for the Defendant. 
 
 HYDE V. WRENCH. 
 Ix Chancery, December 8, 1840. 
 
 [Heported in 3 Beavan, 334.] 
 
 This case came on upon general demurrer to a bill for specific per- 
 formance, which stated to the efiect following : — 
 
 The defendant, being desirous of disposing of an estate, ofiered, by 
 his agent, to sell it to the plaintifi" for 1,200Z., which the plaintifl', by his 
 agent, declined ; and on the 6th of June the defendant wrote to his agent 
 as follows : "I have to notice the refusal of your friend to give me 1,200^. 
 for my farm ; I will only make one more ofier, which I sliall not alter 
 
 1 4 D. J. & S. 638. = 4 D. J. & S. 64.5, 64P. = ?. CIi. P. 048.
 
 CHAP, l] HYDE r. WltENCH. 85 
 
 from; that is, 1,000/. lodged in tlic lianlc until Michaelmas, wlion titli; 
 shall be made clear of expenses, land tax, Ac. I expect a reply by return, 
 as I have another application." This letter was forwarded to the plaintiff's 
 agent, who immediately called on the defendant ; and, previously to 
 accepting the ofter, offered to give the defendant 950/. for tlie purchase of 
 the farm, but the defendant wished to liave a few days to consider. 
 
 On the 1 1th of June the defendant wrote to the plaintiff's agent as 
 follows : " I have written to my tenant for an answer to certain inquiries, 
 and, the instant I receive his reply, will communicate with you, and 
 endeavor to conclude the prospective purchase of my farm. I assure you 
 I am not treating with any other person about said purcliase." 
 
 The defendant afterwards promised he would give an answer about 
 accepting the 9501. for the purchase on the 26th of June ; and on the 
 27th he wrote to the plaintiff's agent, stating he was sorry he could not 
 feel disposed to accept his offer for his farm at Luddenham at present. 
 
 This letter being received on the 29th of June, the plaintiff's agent 
 on that day wrote to the defendant as follows : " I beg to acknowledge 
 the receipt of your letter of the 27th instant, informing me that you 
 are not disposed to accept the sum of 950/. for your farm at Luddenham. 
 This Ijeing the case, I at once agree to the terms on which you ofi'ered 
 the farm ; viz. 1,000/. through your tenant, Mr Kent, by your letter of 
 the 6th instant. I shall be obliged by your instructing your solicitor 
 to communicate with me without delay, as to the title, for the reason 
 which I mentioned to you." 
 
 The bill stated, that the defendant " returned a verbal answer to the 
 ■ last-mentioned letter, to the effect he would see his solicitor thereon ; " 
 and it charged that the defendant's offer for sale had not been withdrawn 
 previous to its acceptance. 
 
 To this bill, filed by the alleged purchaser for a specific performance, 
 the defendant filed a general demurrer. 
 
 Mr Khidersley and Mr Eeene in support of the demurrer. To con- 
 stitute a valid agreement there must be a simple acceptance of the 
 terms proposed. Holland v. Eyre.^ The plain tifi; instead of accepting 
 the alleged proposal for sale for 1,000/. on the 6th of June, rejected it, 
 and made a counter proposal ; this put an end to the defendant's offer, 
 and left the proposal of the plaintiff alone under discussion; that has 
 never been accepted, and the plaintiff could not, without the concurrence 
 of the defendant, revive the defendant's original proposal. 
 
 Mr Pemberton and Mr Freeling, contra. So long as the offer of the 
 defendant subsisted, it was competent to the plaintiff to accept it ; the 
 bill charges that the defendant's offer had not been withdrawn previous 
 to its acceptance by the plaintift'; there, therefore, exists a valid subsist- 
 ing contract. Kennedy v. Lee,' Johnson v. King,' were cited. 
 
 1 2 Sim. & St. lOi. - 3 Mer. 451. ^ 2 Bing. 270.
 
 8G COOKE V. OXLEY. [cilAP. I 
 
 The Master of the Rolls. 
 
 Under the circumstances st.ated in tliis bill, I think there exists no 
 valid binding contract between the parties for the purchase of the property. 
 The defendant offered to sell it for 1,000/., and if that had been at once 
 unconditionally accepted, there would undoulitedly have been a perfect 
 binding contract ; instead of tliat the plaintiff made an ofl'er of his own 
 to purchase the property for 950/., and he thereby rejected the offer 
 previously made by the defendant. I think that it was not afterwards 
 competent for him to revive the proposal of the defendant, by tendering an 
 acceptance of it ; and that therefore there exists no obligation of any sort 
 between the parties ; the demurrer must be allowed. 
 
 COOKE V. . OXLEY. 
 In the King's Bench, May 14, 1790. 
 
 [Ueported in 3 Term Ueports, G53.] 
 
 This was an action upon the case ; and the tliird count in the decla- 
 ration, upon which the verdict was taken, stated that on, kc. a certain 
 discourse was had, &c., concerning the buying of two hundred and 
 sLsty-six hogsheads of tobacco ; and on that discourse the defendant 
 proposed to the plaintiff that the former should sell and deliver to the 
 latter the said two hundred and .sixty-six liogsheads [at a certain price] ; 
 whereupon the plaintiff desired the defendant to give him (the plaintifl') 
 time to agree to or dissent from the proposal till the hour of four in the 
 afternoon of that day, to which the defendant agreed ; and thereupon 
 the defendant proposed to the plaintiff to sell and deliver the same upon 
 the terms aforesaid, if the plaintiff' would agree to purchase them vpon 
 the terms aforesaid, and tvould give iwtice thereof to the defendant before the 
 hour of four in the afternoon of thai day ; the plaintiff averred that he 
 did agree to purchase tlie same upon the terms aforesaid, and did give 
 notice thereof to the defendant befoi-e the hour of four in the afternoon 
 of that day ; he also averred that he requested the defendant to deliver 
 to him the said hogsheads, and oflered to pay to the defendant the said 
 price for the same, yet that the defendant did not, &.c. 
 
 A rule having been obtained to show cause why the judgment should 
 not be arrested, on the ground that there was no consideration for the 
 defendant's promise, 
 
 Ershine and Wood now showed cause. This was a bargain and sale 
 on condition ; and though the plaintiff might have rescinded the contract 
 before four o'clock, yet, not having done so, the condition was complied 
 with, and both parties were bound liy the agreement. Tlie declaration
 
 CHAP. l] OFFOIU) L\ UAVIES. 87 
 
 considered this as a complete bargain and sale ; for tlio lireaeli of the 
 agreement is for not delivering the tobacco, and not for not selling it. 
 
 Lord Kenyon, Ch. J. (stopping Bearcroft, who was to have argued 
 in support of tlie rule): Nothing can be clearer than that, at the time 
 of entering into this contract the engagement was all on one side ; the 
 other party was not bound ; it was tlierefore nudum pachim. 
 
 BuLLE«, J. It is impossible to support this declaration in any point 
 of view. In order to sustain a promise, there must be either a damage 
 to the plaintiff, or an advantage to the defendant : but here was neitlier 
 when the contract was first made. Then, as to the subsequent time, 
 the promise can only be supported on the ground of a new contract 
 made at four o'clock ; but there is no pretence for that. It has been 
 argued that this must be taken to be a complete sale from the time 
 when tlie condition was complied with ; but it was not complied with, 
 for it is not stated that the defendant did agree at four o'clock to the 
 terms of the sale ; or even that the goods were kept till that time. 
 
 Grose, J. The agreement was not binding on the plaintiff before 
 four o'clock ; and it is not stated that the parties came to any subsequent 
 agreement ; there is, therefore, no consideration for the promise. 
 
 Bute absolute.' 
 
 OFFORD V. DAVIES AND ANOTHER. 
 
 In the Common Pleas, June 2, 18G2. 
 
 [Reported in 12 Common Bench Reports, New Series, 718.] 
 
 This was an action upon a guaranty. The first count of the de- 
 claration stated, that, by a certain instrument in writing signed by 
 the defendants, arid addressed and delivered by the defendants to the 
 plaintiff, the defendants undertook, promised, and agreed with the plaintiff 
 in the words and figures following, that is to say : " We, the undersigned, 
 in consideration of your discounting, at our request, bills of exchange for 
 Messrs. Davies &, Co., of Newtown, Montgomeryshire, drapers, hereby 
 jointly and severally guarantee for the space of twelve calendar montlis 
 the due payment of all such bills of exchange, to the extent of 600/. 
 And we further jointly and severally undertake to make good any loss or 
 expenses you may sustain or incur in consequence of advancing Messrs. 
 Davies & Co. such moneys." Averment, that tlie plaintiff, relying on 
 the said promise of the defendants, after the making of the said promise, 
 and within the space of twelve calendar months thereaftei-, did discount 
 divers bills of exchange for the said Messrs. Davies ife Co., of Newtown 
 
 ^ This judgment was aflirmcd in the Exchequer Chamber; M. 32 (!. 3.
 
 88 OFFOKD ('. DAVIES. [CHAI>. I 
 
 aforesaid, certain of wliicli bills of exchange became due and payable 
 before the commencement of this suit, but were not then or at any other 
 time duly paid, and the said bills respectively wei'e dishonoured ; and 
 that the plaintiff, after the making of tlie said promise, and within 
 the said twelve calendar months, advanced to the said Messrs. Davies 
 & Co. divers sums of money on and in respect of the discount of the said 
 last-mentioned bills so dishonoured as aforesaid, certain of which moneys 
 were due and owing to the plaintiff before and at the time of the 
 commencement of this suit; and that all things had happened and all 
 times had elapsed necessary, ikc. ; yet that the defendants broke their said 
 promise, and did not pay to the plaintiff, or to the respective holders 
 for the time being of the said bills of exchange so dishonoured as 
 aforesaid, or to any other person entitled to receive the same, the 
 respective sums of money payable by the said bills of exchange ; nor 
 did the defendants pay to the plaintiff the said sums of money so 
 advanced by the plaintiff as aforesaid, or any part thereof; whereby 
 the sums payable by the said bills of exchange so dishonoured as aforesaid, 
 became lost to the plaintiff, and he became liable to pay and take up 
 certain of the said bills of exchange, and did pay and take up certain 
 of the said bills of exchange, and was forced and obliged to and did 
 expend certain moneys in endeavoring to obtain part of certain of the said 
 bills of exchange, and the plaintiff' lost the interest which he might have 
 made of his moneys, if the said bills had been duly paid at maturity. 
 
 Fourth plea, to the first count, — so far as the same relates to the 
 sums payable by the defendants in respect of the sums of money payable 
 by the said bills of exchange, and the said sums so advanced, — that, 
 after the making of the said guaranty, and before the plaintiff had 
 discounted such bills of exchange, and before he liad advanced such 
 sums of money, the defendants countermanded the said guaranty, and 
 requested the plaintiff not to discount such bills of exchange, and not to 
 advance such moneys. 
 
 To this plea the plamtiff demurred ; the ground of demurrer stated 
 in the margin being " that the fourth plea offers no defence to that part 
 of the declaration to which it is pleaded, for that a party giving a guaranty 
 [for a definite period] has no power to countermand it without the assent 
 of the person to whom it is given." Joinder. 
 
 Prentice (with whom was Brandt), in support of the demurrer. A 
 guaranty like this, to secure advances for twelve months, is a contract 
 which cannot be rescinded or countermanded within that time without 
 the assent of the person to whom it is given. [Byles, J. What con- 
 sideration have these defendants received ?] For any thing disclosed by 
 the jjlea, the plaintiff might have altered his position in consequence 
 of the guaranty, by having entered into a contract with Davies & Co., 
 of Newtowm, to discount their bills for twelve months. In Calvert v. 
 Gordon, 1 M. & R. 497, 7 B. & C. 809, 3 M. & R. 124, it was held that
 
 CHAr. l] OFFOUD ('. DAVIKS. 89 
 
 the oliligoi- of a bond conditioned f<ir tlie faithful service of A. whilst 
 in tlie employ of B., cannot discharge himself by giving notice tliat after a 
 certain period he will be no longer answerable ; nor can the personal 
 representative of the obligor discharge himself by sucli a notice. Lord 
 Tenterden, in giving judgment in tiiat case, says (3 M. and R. 128): 
 " The only question raised by the defendant's second plea is, whether it is 
 competent to the surety to put an end to his liability by giving a notice 
 which is to take effect from the very day on which it is given. It 
 would be a hardship upon the master if this could be done. It is 
 said that it would be a hardship on the surety if this liability must 
 necessarily continue during the whole time that the principal remains 
 in his service ; but, looking at the instrument itself, it would appear that 
 it was the intention of the testator to enter into this unlimited engage- 
 ment. It was competent to him to stipulate that he should be discharged 
 from all future liability after a specified time, after notice given. This he 
 has not done." Here, the defendants have stipulated that their liability 
 shall discontinue at the end of twelve calendar months. What pretence 
 is there for relieving them from that bargain 1 [Byles, J. Suppose 
 a man gives an open guaranty, with a stipulation that he will not 
 withdraw it, — what is there to bind him to that T\ If acted upon by 
 the other party, it is submitted that that u-onld be a binding contract. 
 Hassell v. Long, 2 M. «fe Selw. 3G3, is an authority to the same effect 
 as Calvert v. Gordon. In Pothier on Obligations, Part II. c. G, § 7, art. 
 2, p. 442, it is said, "When the obligation to which a surety has acceded 
 must from its nature exist a certain time, however long it may be, 
 the surety cannot within that time demand that the principal debtor 
 should discharge him from it ; for as he knew, or ought to know, the 
 nature of the obligation to which he acceded, he should have reckoned 
 upon continuing obliged during the whole of the time." Again, Part 
 III. c. 6, art. 4, p. G35 : " Regularly, lapse of time does not extinguish 
 obligations : persons who enter into an obligation oblige themselves 
 and their heirs until the obligation is perfectly accomplished. But there 
 may be a valid agreement that an obligation sliall only continue to a 
 certain time. For instance, I may become surety for a person upon 
 condition that my undertaking shall not bind me after the expiration 
 of three years." 
 
 E. James, Q. C. (with whom was T. Jones), contra. Tlie cases upon 
 bonds for guaranteeing the honesty of clerks or servants are inapplicable : 
 there the contract attaches as soon as the clerk or servant enters the 
 service, and it is not separable. This, however, is not a case of contract 
 at all. It is a mere authority to discount, and a promise to indemnify the 
 plaintiff in respect of each bill discounted ; and it was perfectly comjietent 
 to the defendants at any time to withdraw that authority as to future 
 transactions of discount. This is more like the mandatum pecuniae 
 credendce treated of by Pothier — on Obligations, Part 11. c. G, § S, art. 1,
 
 00 OFKORD U. DAVIES. [CHAI'. I 
 
 If so, it is suliject to all iiiciilciits of a mandate or autlioi-ity. [Willes, J. 
 Mandatuni does not ineau a bare authority which may be revoked.] In 
 Story on Agency, the learned author, having stated in § 463 that, 
 "in general, the principal lias a right to determine or revoke the authority 
 given to his agent, at his own mere pleasure," proceeds in § 464 : " The 
 Civil law contained an equally broad doctrine. Si mandavero exigendam 
 pecuniam, deinde voluntatem mutavero, an sit mandati actio vel niihi, 
 vel haeredi meol Et ait Marcellus, cessare mandati actionem, quia 
 extinctum est mandatum, iinita voluntate. The same principle has 
 infused itself into the jurisprudence of modern Europe, as, indeed, it 
 could not fail to do, since it is but an application of a maxim founded 
 upon the natural rights of men in all ages, in regard to their own private 
 concerns, where the law has not interfered to prohibit the exercise of 
 them." "But," § 466, "let us suppose that the authority has been in 
 pai-t actually executed by the agent ; in that case, the question will 
 arise whetlier the principal can revoke the authority, either in the 
 whole or as to the part which remains unexecuted. The true principle 
 would seem to be, that, if the authority admits of severance, or of 
 being revoked as to the part which is unexecuted, either as to the 
 agent or as to third persons, then and in such case the revocation will 
 be good as to the part unexecuted, but not as to the part already 
 executed." A mutual agreement to rescind can only be necessary where 
 there is a mutual contract. But, in a case like this, where there is 
 no comjjlete contract until something is done by the mandatory, the 
 assent of both parties cannot be required. Suppose Davies ife Co., of 
 Newtown, liad become notoriously insolvent, would the defendants con- 
 tinue bound by their guara]ity, if the plaintill's, with notice of that 
 fact, chose to go on discounting for them 1 [Williams, J. Suppose I 
 guarantee the price of a carriage, to be built for a third jsarty who, 
 before the carriage is finished, and consequently before I am bound to 
 pay for it, becomes insolvent, — may I recall my guaranty ?] Not after 
 the coach-builder has commenced the carriage. [Eele, C. J. Before 
 it lipens into a contract, either party may withdraw, and so put an 
 end to the matter. But the moment the coach-builder has j^repared 
 the materials, he would probably be found by the jury to have con- 
 tracted.] In an American work of considerable authorit}', Parsons on 
 Contracts, p. 517, it is said, "A promise of guaranty is always revocable, 
 at the pleasure of the guarantor, by sufficient notice, unless it be made 
 to cover some specific transaction which is not yet exhausted, or unless 
 it be founded upon a continuing consideration, the benefit of which 
 the guarantor cannot or does not renounce. If the promise be to 
 guarantee the payment of goods sold up to a certain amount, and, 
 after a part has been delivered, the guaranty is revoked, it would seem 
 that the revocation is good, unless it be founded upon a consideration 
 which has been paid to the guarantor for the whole amount ; or unless
 
 CIIAr. l] OFFORD ('. DAVIES. 91 
 
 the seller has, in reliance on the iiuaranty, not only delivered a part to 
 the buyer, but liound liimself by a contract, enforcealile at law, to 
 deliver the residue." Brocklehank v. Jfoorc, cor. Abbott, C. J., Guildhall 
 Sittings after Trinity Terra, 1823, referred to in 2 Stark. Evid., 3d edit. 
 510, n., is a direct authority that "a continuing guaranty is counter- 
 mandable by parol." And the same principle is clearly deducible from 
 Mason v. Fritchard, 12 East, 227. [WiLLiAjrs, J. That would have 
 been applicalile, if this had been a guaranty for GOO^., with no mention 
 of the twelve calendar months.] The mention of twelve months would 
 not compel the plaintiff to go on discounting for that period. In 
 Holland v. Teed, 7 Hare, 50, under a guaranty given to a banking- 
 house consisting of several partners, for the repayment of such bills 
 dra'WTi upon them by one of their cu.stomers as the bank might honor, and 
 any advances they might make to the same customer, within a certain 
 time, it was held that the guaranty ceased upon the death of one of 
 the partners in the bank before the expiration of the time to which 
 tlie guaranty was expressed to extend ; that bills accepted before the 
 death of the partner, and payable afterwards, were within the guaranty; 
 and that the amount guaranteed could not be increased by any act 
 of the continuing firm and the customer after the death of the partner, 
 although such amount might be diminished by such act. [Byles, J. The 
 case of a change in the firm is now provided for by the Mercantile Law 
 Amendment Act, 19 and 20 Vict. c. 97, § 4. Erle, C. J. What meaning 
 do you attribute to the words "at our request" in this guaranty'!] As 
 and when we request. The notice operated a retractation of the request, 
 and any discount which took place after that notice was not a discount at 
 the request of the defendants. 
 
 Brandt, in reply. The Court of Exchequer have decided in this 
 term, in a case of Bradbury ^\ Morgan, that the death of the surety 
 does not operate a revocation of a continuing guaranty. If that be so, 
 it is plain that the guaranty is not a mere mandatum, but a contract. 
 In Gordon v. Calvert, 2 Sim. 253, 4 Russ. 581, the executrix of the 
 deceased surety gave notice to Calvert <& Co., the obligees, that she 
 would no longer consider hei'self liable on the bond ; but the Vice- 
 Chancellor (Sir L. Shadwell) said, that, " by the original conti-act, the 
 liability of the surety was to continue as long as Calvert ifc Co. kept 
 Richard Edwards, or he chose to remain in their service ; that after 
 Calvert ife Co. had received the plaintiff's letter they never gave her 
 any intimation that they did not consider her as continuing Jiable under 
 her husband's bond ; that their conduct did not operate in any manner 
 upon her; and that thei-efore the injunction ought to be dissolved." 
 That shows that, in the opinion of that learned Judge, the assent of 
 the three persons concerned and interested in tlie bargain would be 
 requisite to its dissolution. The fourth plea does not allege that notice 
 of revocation was given before any bills had been discounted by the
 
 92 OFFOUD ('. DAMES. [CHAP. I 
 
 plaintifls. It must therefore be assumed that some discounts had taken 
 place. [T. Jones. Tlie fact undoubtedly is so.] 
 
 Cur. adv. vuU. 
 
 Erle, C. J., now delivered the judgment of the Court'. 
 
 The declaration alleged a contract by the defendants, in consideration 
 that the plaintiff would at the request of the defendants discount l)ills 
 for Davies & Co., not exceeding 600^., the defendants promised to 
 guarantee the repayment of such discounts for twelve months, and the 
 discount, and no repayment. The plea was a revocation of the promise 
 before the discount in question ; and the demurrer raised the question 
 whether the defendants had a riglit to revoke the promise. We are of 
 opinion that they liad, and that, consequently, the plea is good. 
 
 This promise by itself creates no obligation. It is in effect condi- 
 tioned to be binding if the jslaintifl' acts upon it, either to the benefit of 
 the defendants or to the detriment of himself. But, until the condi- 
 tion has been at least in part fulfilled, the defendants have the power 
 of revoking it. In the case of a simple guaranty for a proposed loan, 
 the right of revocation before the proposal has been acted on did not 
 appear to be disputed. Then are the rights of the parties affected 
 either by the promise being expressed to be for twelve months, or \>y 
 the fact that the same discounts had been made before that now in 
 question, and repaid 1 We think not. 
 
 The promise to repay for twelve months creates no additional liabi- 
 lity on the guarantor, but, on the contrary, fixes a limit in time beyond 
 which his liability cannot extend. And, with respect to other discounts, 
 which had been repaid, we consider each discount as a separate trans- 
 action, creating a liability on the defendant till it is repaid, and after 
 repayment leaving the promise to have the same operation that it had 
 before any discount was made, and no more. 
 
 Judgment for the defendants. 
 
 ROUTLEDGE v. GRANT. 
 In the Common Pleas, May 13, 1828. 
 
 [Reported in 4 Bingham, 653.] 
 
 Assumpsit. The declaration stated (first count) that the plaintiff was 
 possessed of a term in a dwelling-house, to expire 2-5t]i December, 185G ; 
 and that defendant agreed, on the 29th April, 182.5, upon receiving 
 a lease for twenty-one years, at 250^. a year rent, with the option of 
 
 ' The case was argued before Erie, C. J., Williams, J., Willes, J., and Byles, J.
 
 CHAP. l] KOUTLEDGE (', GRANT. 93 
 
 having the time extended to tliirty-one years on giving six mouths' notice 
 and upon having possession on tlie 25th July then next, to pay plaintiff 
 2,750?., and take the fixtures at a valuation. 
 
 Averment of plaintiff's readiness to grant the lease. Breacli ; refusal 
 to accept it, and to take the fixtures at a valuation ; and non-payment of 
 the 2,750?. 
 
 The second count alleged the plaintiff to be entitled to a certain term, 
 to wit, a term of thirty-two years, in the dwelling-house, under a certain 
 contract between the plaiutift" and Anthony Hermon, who was autliorized 
 in that behalf; and tlien stated the agi-eement with the defendant, and tlio 
 breach, as before. 
 
 The third count alleged plaintiff' to be possessed for the residue of 
 a certain term, to expire 25tli December, 1856; and the agreement, 
 tender of lease to defendant, and breach, as before. 
 
 At the trial before Best, C. J., London Sittings after Michaelmas term, 
 it appeared that, on the 18th March, 1825, the plaintiff received a note 
 from the defendant touching the premises in these terms : — 
 
 MR. grant's proposal. 
 
 To pay a premium of 2,750/., upon receiving a lease for twenty-one 
 years, with the option (upon giving six months' pre\dous notice to tlie 
 landlord or his agent) of having the time extended to thirty-one years, 
 paying the same yearly rent as before, for such extended term of ten 
 years beyond twenty-one years. — Rent, 250?. 
 
 Mr. Grant to pay for the fixtures at a valuation, possession to be given 
 on or before 25th July next, to which time all taxes and outgoings are to 
 be discharged by Mi\ Routledge ; and a definitive answer to be given within 
 six weeks from the 18tli March, 1825. 
 
 The plaintiff, who at this time had only a term of twelve years in 
 the premises, had to apply to his landlord for a new lease before he 
 was in a condition to accept the defendant's ott'er. The plaintiff', having 
 come to an understanding with his landlord, wrote the following note to 
 the defendant : — 
 
 Mr. Routledge begs to say that lie accepts Mr. Grant's ofl'er for his 
 house. No. 59 St. James's Street, and that lie will give Mr. Grant possession 
 on the 1st of August next. 
 
 St. James's Street, 6th April, 1825. 
 
 Mr. R. will esteem it a particular favor if ^h: Grant will not, for the 
 present, name the suliject to any one. 
 
 The defendant returned the following answer : — 
 
 7th April, 1825. 
 
 Sir, — I received your note last night, and hasten to acquaint you, that, 
 having considered as confidential the negotiation respecting your house, I had 
 mentioned it to no one ; but upon consulting with a friend this morning, in
 
 94 ROUTLEDGE V. GRANT. [CHAP. I 
 
 whose opinion I had more confidence than my o\vn, I am advised, for some 
 reasons which had not occurred to myself, not to think of taking a liouse 
 in St. James's Street for a dwelling-house. May I therefore request you 
 to permit me to withdraw the proposal I made to you about it ? I am in 
 hopes you will make no hesitation to do this, when you consider the 
 spirit of candor and openness in which it was made to you. But should 
 it be otherwise, as I am the last that would willingly act with inconsistency, 
 I will willingly refer the question to friends for decision, and abide by their 
 opinion of the case. 
 
 I have the honour to be, etc., 
 
 Alex. Grant. 
 Mr Thomas Eoutledge. 
 
 To this the plaintiff replied as follows : — 
 
 8th April, 1825. 
 Sir, — In answer to your letter of yesterday, I beg to state, that, 
 relying upon your performing the agreement for the purchase of my house 
 in St. James's Street, I have taken another house, and made arrange- 
 ments which I cannot, without great loss, relinquish. I hope, therefore, 
 that you will not wish me to withdraw it. 
 
 I am, ifcc, 
 
 Thos. Routledge. 
 Alexander Grant, Esquire. 
 
 The defendant rejoined : — 
 
 9th April, 1825. 
 
 Sir, — Your note of yesterday surprised me, being altogether at variance 
 with your conversation with nie two or three hours previous to your note, 
 dated on the evening of 6th, in which, you must recollect, you one moment 
 declared yourself off ; and, finally, you went away to have the opuiion of 
 Mrs Routledge about the answer you were to send me. How therefore 
 you can, under such circumstances, suffer loss and inconvenience from my 
 declining to proceed further in the treatj', I am at a lost to imagine ; 
 and I was in hopes you would have been satisfied with what I had stated 
 in reply to your first note, to have had the liberality of letting the matter 
 drop. But if that should not be your intention, I have only to add 
 that you may proceed with your claim for " loss and inconvenience," as 
 you may think most advisable. I am, &c., 
 
 Alex. Grant. 
 Mr. Thomas Eoutledge. 
 
 The plaintiff, after this, surrendered the existing lease to his landlord, 
 and obtained from him a new one, dated 21st April, 1825, from the 25th 
 December, 1824, for thirty-two years, for the same clear yearly rent of 
 250/., payable quarterly ; in which the covenants on the part of the 
 lessee were similar to those in the former ; and then wrote the defendant 
 the following letter: — •
 
 CHAP. l] UOUTLKDOE ('. CiHAXT. 95 
 
 Sir, — Upon referring to my letter to you of the Gth inst., accepting 
 your offer for my house, No. 59 St. James's Street, I perceive tliat I, by 
 mistake, stated tliat I would give possession on the 1st day of August 
 next. By your offer, you state that possession is to be given on or before 
 the 25th July next ; and I inform you that I am ready to give you 
 possession, according to your proposal. 
 
 I am, ifcc, 
 29th April, 1825. Thos. Routledge. 
 
 Tliis letter, on the day it was dated, was delivered at the defendant's 
 house; and the keys, and a lease of the premises in question, according 
 to the agreement, were tendered to him before the 25th July, but rejected. 
 
 The si.K weeks, from the 18th March, 1825, within which, by the 
 defendant's proposal, a definitive answer was to be given, expired on the 
 1st May, 1825. 
 
 Upon these facts it was objected, first, that the plaintifl' lieing allowed 
 six weeks to accept or reject the defendant's offer, the defendant was 
 entitled also, until it was accepted, to retract it, at any period before 
 the expiration of the six weeks ; that there was no acceptance of the 
 terms proposed till the 29th of April, which came too late, the defendant 
 ha^'ing retracted his proposal on the 9th. Secondly, that the plain- 
 tift' had not, before the defendant ■withdrew his proposal, any such 
 interest in the premises as he was alleged to have in the declaration, or 
 as would have enabled him to accede to that proposal. The plaintiff 
 was thereupon nonsuited, with leave to move the Court to set the non- 
 suit aside. 
 
 Taddy, Serjt., accordingly obtained a rule nisi to set aside this non- 
 suit, and 
 
 Wilde, Serjt., showed cause. There was no valid contract binding on 
 both parties. By the terms of the defendant's proposal, the plaintiff had 
 sis weeks to accept or reject it, and the parties would not have been 
 on an equal footing if the defendant had not the privilege of ^\•ithdrawing 
 his proposal during the same period ; having finally witlidrawn it on 
 the 9th of April, the plaintifl"s acceptance on the 29th came too late, 
 the acceptance on the 6tli being out of the question, as not acceding to 
 the terms ofiered by the defendant. Kennpj.bj v. Zee,', has decided that 
 an acceptance varying in any degree from the terms of an offer, is in 
 effect no acceptance; and Adams v. LindselP confirms the principle 
 established in Cooke v. Oxley', that a party who allows time for the 
 acceptance of an offer may retract before it is accepted. But the plaintiff, 
 at the time of the defendant's offer, and up to the period of his with- 
 drawing it, had no sulIi interest in the premises as that stated in the 
 declaration, nor even such as could have enabled him to meet the 
 proposal ; he had only a term of twelve years wjien he agreed to grant 
 
 1 3 Mcriv. 4.>t. = 1 B. & A. 681. ^ 3 T. K. 653.
 
 9G ROUTLEDGE l\ fUlANT. [('HAT. 1 
 
 thirty-one. On tlie gi-ound of viiriance, therefore, the nonsuit cannot ))e 
 impeached. 
 
 Taddy and Jones, Serjts., in support of the rule. Tlie defendant's 
 offer was made on good consideration ; namely, that the plaintiff should 
 procure him a term of thirty-one years in the premises ; and a jiarty 
 cannot retract, during the time which he allows for deliberation, an 
 offer made on good consideration. Cooke v. Oxley was determined on 
 the ground that tlie bargain was nudum jiacticm, and therefore without 
 consideration. Lord Kenyon said, " At the time of entering into the 
 contract the engagement was all on one side ; the other party was not 
 bound; it was, therefore, nudum jxtcium." And Buller, J., put it on the 
 ground that it ought to have been stated that the defendant (who was 
 allowed till four o'clock to consider whether or not he would buy goods 
 on the terms offered) " did agree at four o'clock to the terms of the 
 sale:" from which it may be inferred that if such a statement had been 
 made in the declaration and proved, the defendant would have been 
 liable for refusing to perform his contract. In the present case there is 
 a sufficient consideration, and a sufficient averment and proof of the 
 plaintiff's agreeing to the terms of the contract before tlie expiration of 
 the time limited. In Adams v. Lindsell the defendants were held to be 
 bound by an offer to sell upon receiving an answer in course of post, 
 although, by accident, the answer did not arrive till two days after the 
 next post, and the defendants had, in the mean time, sold the goods to 
 a third person. 
 
 With respect to the alleged variance, — it is sufficient that the plaintiff 
 had a term at his disposal ; the time when it was to expire was immaterial, 
 and the allegation that it was to expire in 1856 may be rejected as 
 surplusage. . . . 
 
 It is sufficient if the party has at the time of the completion of the 
 contract, that which lie proposes to sell. And on the 29tli of April, before 
 which time there was no complete contract in the present case, the plaintiff 
 was in possession of the term he agreed to dispose of. 
 
 Best, C. J. The nonsuit was right on both grounds. I put it on 
 the same footing as I did at Nisi Prius. Here is a proposal by the 
 defendant to take property on certain terms ; namely, that he should 
 be let into possession in July. In that proposal he gives the plaintiff 
 six weeks to consider ; but if six weeks are given on one side to accept 
 an offer, the other has sbc weeks to put an end to it. One party cannot 
 be bound without the other. This was expressly decided in Cooke v. Oxley, 
 where the defendant proposed to sell, at a certain price, tobacco to the 
 plaintiff, who desired to have till four in the afternoon of that day to 
 agree to or dissent from the proposal ; with wliich terms the defendant 
 complied ; and the plaintiff having afterwards sued him for non-delivery 
 of the tobacco. Lord Kenyon put it on the true ground, by saying, " At 
 the time of enteriii" into this contract tlie engagement was all on one
 
 CHAP. l] ROUTLEDGE V. GIUNT. 97 
 
 side; the other party was not bound." Buller, J., said, "It lias bt>en ar<;ued 
 that this must be taken to be a complete sale from the time the condition 
 was complied with : but it was not complied with ; for it is not stated that 
 the defendant did agree at four o'clock to the terms of the sale ; or 
 even that the goods were kept till that time." I put the present case on 
 the same ground. At the time of entering into this contract the engage- 
 ment was all on one side. In Payne v. Cave ' it was holden that the 
 defendant, wlio had bid at an auction, might retract his bidding any time 
 before the hammer was down, and the Court said, " The auctioneer is 
 the agent of the vendor, and the assent of both parties is necessary to 
 make the contract binding ; that is signified on the part of the seller by 
 knocking down the hammer, which was not done here till the defendant 
 had retracted. An auction is not unaptly called locus pwnitentice. Every 
 bidding is nothing more than an ofler on one side, which is not binding on 
 either side till it is assented to. But, according to what is now contended 
 for, one party would be bound by the offer, and the other not, which can 
 never be allowed." 
 
 These cases have established the principle on which I decide ; namely, 
 tliat till both parties are agreed, either has a right to be off. The case of 
 Adarns v. Lindsell is supposed to break in on them ; but I think it does 
 not, because the Court put it on the circumstance that the offer was made 
 by the post, and say, " If the defendants were not bound by their offer 
 when accepted by the plaintiffs, till tlie answer was received, then the 
 plaintiffs ought not to be bound till after they had received the notification 
 that the defendants had received their answer and assented to it. And so 
 it might go on ad ivfinitum. The defendants must be considered in 
 law as making, during every instant of the time their letter was travelling, 
 the same identical offer to the plaintiffs ; and then the contract is com- 
 pleted by the acceptance of it by the latter." If they are to be considered 
 as making the offer till it is accepted, the other may say, "make no 
 further offer, because I shall not accept it ; " and to place them on 
 an equal footing, the party who offers should have the power of retracting 
 as well as the other of rejecting : therefore I cannot bring myself to 
 admit that a man is bound when he says, " I will sell you goods 
 upon certain terms, receiving your answer in cour.se of post." How- 
 ever, it is not necessary to touch that decision, for the reasoning of the 
 Court coincides with the principle on which we now determine. As the 
 defendant repudiated the contract on the 9th of April, before tlie expi- 
 ration of the six weeks, he had a right to say that the plaintiff" should not 
 enforce it afterwards. 
 
 But upon the question of variance, we are all of opinion that none 
 of the counts apply. It is not necessary, perhaps, that the termini of 
 the plaintift's lease should be set out wth precision ; but the variance 
 is fatal if the plaintiff has not, at least, aii interest which will enable 
 
 • 3 T. R. 148. 
 F. 7
 
 98 RAMSGATE V. H. CO. V. MONTEFIORE. [CHAP. I 
 
 him to perform his contract. The variance is not in words, but in sub- 
 stance. The plaintiff liad no such term as that stated in the tirst and 
 third counts. In the second, he states he had a contract for a lease ; — 
 such a contract, to be valid, must be in writing, and he cannot be said to 
 have had it unless he had it in writing. But there was no evidence 
 of any such contract ; and, therefore, upon both grounds, the rule must be 
 discharged. 
 
 BuRROUGH, J.', coincided in discharging the rule on the ground of 
 variance. 
 
 Gaselee, J. If this case has rested on the first point, I should have 
 wished for time to consider it ; but on the ground of variance, I have no 
 doubt that this rule must be Discharged. 
 
 EAMSGATE VICTORIA HOTEL COMPANY LIMITED 
 
 V. MONTEFIORE. 
 
 SAME V. GOLDSMID. 
 
 In the Exchequer, January 17, 1866. 
 
 [Reported in Law Reports, 1 Exchequer, 109.] 
 
 These were actions for non-acceptance of shares, and for calls, and 
 cross-actions for recovery of deposit, and for damages for not duly allotting 
 shares, turned into a special case. 
 
 The company was completely registered 6th June, 1864. By the 
 second article of association it was provided that the company should 
 continue incorporated, notwithstanding that the whole number of shares 
 in the company might not be subscribed for or issued, and might com- 
 mence and carry on business when, in the judgment of the board, a 
 sufficient number of shares had been subscribed to justify them in so 
 doing. 
 
 The prospectus of the company contained the following words : 
 "Deposit on application \l. per share, and U. on allotment." And it 
 was further stated that if no allotment were made the deposit would be 
 returned. 
 
 The defendant Montefiore, on the 8th of June, 1864, filled up, signed 
 and sent to the directors the printed form of application annexed to 
 the prospectus, which was as follows : — 
 
 Gentlemen, — Having paid to your bankers the sum of 50^., I hereby 
 request you ^vill allot me fifty shares of 201. each in the Ramsgate Victoria 
 Hotel Company (Limited); and I hereby agree to accept such shares, 
 
 ' Park, J. , was absent at Chambers.
 
 CHAP. l] RAMSGATE V. H. CO. v. MONTEFIORE. 99 
 
 or any smaller number that may be allotted to me, to pay tlie deposit and 
 calls thereon, and to sign the articles of association of the company at 
 sucli times and in such manner as you may appoint. 
 
 The defendant had so paid the sum of 50L, and had taken from the 
 bankers the following receipt : — 
 
 Received, the 8th of June, 1864, on account of the directors of the 
 Ramsgate Victoria Hotel Company (Limited), the sum of 50^., being 
 the deposit paid in accordance with the terms of the prospectus, on an 
 application for an allotment of fifty shares in the same undertaking. 
 
 On the 1 7th of August the secretary made out and submitted to tlie 
 directors a list of applicants for shares up to that time, in which appeared 
 the name of the defendant for fifty shares. The list was headed : " List of 
 subscribers, August 17, 1864." 
 
 On the 2d of November the secretary again submitted a list of sub- 
 scribers to the directors, but they did not deem it advisable to proceed to 
 an immediate allotment, and entered a minute to that eflect. On tlie 
 8th of November, the defendant, having received no communication from 
 the company, withdrew his application. 
 
 On the 23d of November the secretary prepared another list of sub- 
 scribers, including the defendant's name. The directors made the first 
 call, and by their direction the secretary wrote the following letter to tlio 
 defendant : — 
 
 Sir, — I am instructed by the directors to acquaint you that, in com- 
 pliance with your application, they have allotted to you fifty shares in this 
 company, and have entered your name in the register of shareholders for 
 the same ; and I have to request that you will pay the balance of the first 
 call, as noted below, on or before the 15th December, to the London and 
 County Bank, 21 Lombard Street, E.G. 
 
 The defendant having refused to accept the shares or pay the call, the 
 company brought the present action against him. 
 
 It was contended by the company that the last-mentioned list and 
 those previously mentioned, or one of them, constituted a sufficient 
 register of shares within the Companies' Act, 1862. 
 
 The directors had entered into an agreement for the purchase of the 
 site of the hotel, paid the deposit, and commenced operations. 
 
 The facts with respect to Goldsmid were the same, except that lie 
 had never withdrawn his application, nor given any notice of his intention 
 to do so. 
 
 Mellish, Q.C {Diglnj with him), for the company, contended that, 
 although in ordinary cases the assent of both parties, mutually com- 
 municated, was necessary to form a contract, yet on the authority of 
 Ex parte Bloxam' and Ex parte Cookney^ shares might be completely 
 allotted without any communication to the applicant, or acceptance by 
 him ; that the facts above stated showed an allotment made on the 17th 
 ' 33 L. J. (Ch.) 519, 574. 2 3 Ce G. & J. 170 ; 2S L. .1. (Ch.) 12. 
 
 7-2
 
 lOO DICKINSON V. DODDS. [CHAV. I 
 
 of August ; but that, if not, the allotment in November was, considering 
 the nature of the contract, made within a reasonable time, and, if so 
 made, the letter of witlidrawal was inoperative. 
 
 M. Chambers, Q.C. {Cohen with him), for the defendants, were not 
 called on. 
 
 The Codkt (Pollock 0. B., Martin, Channell, Pigott, BB.), observed 
 that, in both cases cited, the question was as to the liability of an appli- 
 cant for shares as a contributory, and they referred to the judgment of 
 Turner, L. J., in Ex parte Bloxam', as explaining the ratio decidendi 
 in that case ; they held that there was no allotment till November 23, 
 that the allotment must be made within reasonable time, and that the 
 interval from June to November was not reasonable, and therefore gave 
 
 Jtidgment/or both the defendants. 
 
 DICKINSON V. DODDS. 
 
 In the High Court op Justice, January 25, 26, 1876. 
 In the Court of Appeal, March" 31, April 1, 1876. 
 
 [Reported in 2 Chancery Division, 463.] 
 
 On Wednesday, the 10th of June, 1874, the Defendant Jo/m Dodda 
 signed and delivered to the Plaintifl', George Dickinson, a memorandum, of 
 which the material part was as follows : — 
 
 " I hereby agree to sell to Mr. George Dickinson the wliole of the 
 dwelling-houses, garden ground, stabling, and outbuildings thereto be- 
 longing, situate at Croft, belonging to me, for the sum of £800. As 
 witness my hand this tenth day of June, 1874. 
 
 "£800. (Signed) John Dodds." 
 
 " P.S.— This offer to be left over until Friday, 9 o'clock, a.m. J. D. 
 (the twelfth), 12th June, 1874. 
 
 " (Signed) /. Dodds." 
 
 The bill alleged that Dodds understood and intended that the Plaintiff 
 should have until Friday 9 a.m. within which to determine whether he 
 would or would not purchase, and that he should absolutely have until 
 that time the refusal of the property at the price of £800, and that the 
 Plaintiff in fact determined to accept the offer on the morning of Thursday, 
 the 1 1th of June, but did not at once signify his acceptance to Dodds, 
 believing that he had the power to accept it until 9 A.M. on the Friday. 
 
 In the afternoon of the Thursday the Plaintiff was informed by a 
 Mr. Berry that Dodds had been offering or agreeing to sell the property to 
 ■ 33 L. J. (Ch.) 575, 576.
 
 CHAP. l] DICKINSON V. DODDS. 101 
 
 ThomMS Allan, the otlier Defendant. Thereupon the Plaintiff, at about 
 lialf-past seven in the evenuig, went to the house of Mrs. Burgess, the 
 iiiother-in-Iaw of Dodds, where he was then staying, and left with her a 
 formal acceptance in writing of the ofler to sell the property. According 
 to the evidence of Mrs. Burgess this document never in fact reached 
 Dodds, she having forgotten to give it to him. 
 
 On the following (Friday) morning, at about seven o'clock. Berry, who 
 was acting as agent for jDickiiison, found Dodds at the Darlington railway 
 station, and handed to him a duplicate of the acceptance by DicJdnson, 
 and explained to Dodds its purport. He replied that it was too late, as 
 he had sold the property. A few minutes later Dickinson himself found 
 Dodds entering a railway carriage, and handed him another duplicate of 
 the notice of acceptance, but Dodds declined to receive it, saying, " You 
 are too late. I have sold the property." 
 
 It appe<ired that on the day before, Thursday, the 11th of June, Dodds 
 had signed a formal contract for the sale of the property to the Defendant 
 Allan for £800, and had received from him a deposit of £10. 
 
 The bill in this suit prayed that the Defendant Dodds might be 
 decreed specifically to perform the contract of the 10th of June, 1874 ; 
 that he might be restrained from conveying the property to Allan ; tliat 
 Allan might be restrained from taking any such conveyance ; that, if any 
 such conveyance had been or should be made, Allan might be declared 
 a trustee of the property for, and might be directed to convey the property 
 to, the plaintiff; and for damages. 
 
 The cause came on for hearing before Vice-Chancellor Bacon on the 
 25th of January, 1876. 
 
 A'ay, Q.C., and Caldecott, for the Plaintiff: — 
 
 The mernorandum of the 10th of June, 1874, being in writing, satisfies 
 the Statute of Frauds. Though signed by the vendor only, it is effectual 
 as an agreement to sell the property. 
 
 Supposing it to have been an offer only, an offer, if accepted before it 
 is withdrawn, becomes, upon acceptance, a binding agreement. Even if 
 signed by the person only who is sought to be charged, a proposal, if 
 accepted by the other party, is within the statute: Reuss v. Picksley', 
 following Wartier v. Willvngton^. 
 
 In Kennedy v. Lee^ Lord Eldon states the law to be, that "if a 
 person communicates liis acceptance of an offer within a reasonable time 
 after the offer being made, and if, within a reasonable time of the accepts 
 ance being communicated, no variation has been made by either party in 
 the terms of the offer so made and accepted, the acceptance must be taken 
 as simultaneous with the offer, and both together as constituting such an 
 agreement as tlie Court will execute." So that, not only is a parol 
 acceptance sufficient, but such an acceptance relates back to the date of 
 
 1 Law Rep. 1 Ex. 342. = 3 Drew. 523. ^ 3 Mer. 441, 454.
 
 102 DICKINSON V. DODDS. [CHAP. I 
 
 the offer. This is further shewn by Adams v. LindselV, where an offer 
 of sale was made by letter to the Plaintiffs " on receiving their answer in 
 course of post." The letter was misdirected, and did not reach the 
 Plaintiffs until two days after it ought to have reached them. The 
 Plaintiffs, immediately on receiving the letter, wrote an answer accepting; 
 and it was held that they were entitled to the beneiit of the contract. 
 
 The ruling in Adams v. LindselV was approved by the House of 
 Lords in Dunlop v. Iliggins^, as appears from the judgment of Sir 
 G. Mellish, L. J., in Harris' Case" ; and it is now settled that a contract 
 which can be accepted by letter is complete when a letter containing sucli 
 acceptance has been posted. The leaving by the Plaintiff of the notice at 
 Dodds' residence was equivalent to the delivery of a letter by a postman. 
 
 That Allan is a necessary party appears from Potter v. Sanders* ; 
 and if Allan has had a conveyance of the legal estate, the Court will decree 
 specific performance against him. 
 
 Swanston, Q.C., and Crossley, for the Defendant Dodds: — 
 
 The bill puts tlie case no higher than that of an offer. Taking the 
 memorandum of the 10th of June, 1874, as an offer only, it is well 
 established that, until acceptance, either party may retract ; Cooke v. 
 Oxley'' ; Benja7nin on Sales". 
 
 After Dodds had retracted by selling to Allan, the offer was no longer 
 open. Having an option to retract, he exercised that option : Humphries 
 v. Carvalho'' ; Pollock on Contracts"; Routledge v. Grant^. 
 
 In delivering judgment in Martin v. MitcheW", Sir T. Plumer, 
 M.R., put the case of a contract signed by one party only. He asked" 
 " What mutuality is there, if the one is at liberty to renounce the 
 contract, and the other not^" and in Meynell v. Surtees'-, the distinc- 
 tions between an offer and an agreement in respect of binding land were 
 pointed out: /Vy on Specific Performance". 
 
 The postscript being merely voluntary, without consideration, is 
 nudum pactum ; and the memorandum may be read as if it contained no 
 postscript. 
 
 Jackson, Q.C., and Gazdar, for the Defendant Allan: — 
 
 Allan is an unnecessary party. If Dodds has not made a valid 
 
 contract with the Plaintiff, he is a trustee for Allan ; if Dodds has made 
 
 a binding contract, rights arise between Allaji and Dodds which are not 
 
 now in controversy. 
 
 "We agree with the co-Defendant that, in order that the Plaintiff 
 
 may have a locals standi, there must have been a contract. If the 
 
 'IB. & A. 681. 2 1H. L. C. 381. s Law Eep. 7 Ch. 587, 595. 
 
 ^ 6 Hare, 1. » 3 T. E. 653. " 2ud Ed. p. 52. 
 
 ' 16 East, 45. » Page 8. " 4 Bing. 653. 
 
 1" 2 Jac. & W. 413. " Page 428. '- 1 Jur. (N.S.) 737. 
 " Page 80.
 
 CHAP. l] DICKINSON V. DODDS. 103 
 
 postscript is a modification of the offer, it is nudum pactum, and miiy be 
 rejected. 
 
 It may he conceded tliat if there had been an acceptance, it woukl 
 have related back in point of date to the offer. But there was no 
 acceptance. Notice of acceptance served on Mrs. Burgess was not enough. 
 
 Even if it woukl liave been otherwise sufficient, liere it was too late. 
 Dodds had no property left to contract for. The property had ceased 
 to be his. He had retracted his offer ; and the property had become 
 vested in some one else : Hebh's Case '. 
 
 The Plaintiff' would not have delivered the notice if he had not heard 
 of tlie negotiation between Dodds and Allan. What retractation could be 
 more effectual than a sale of the property to some one else ■! 
 
 The Defendant Allan was a bond fide purchaser without notice. 
 
 Kay in reply : — 
 
 The true meaning of the document was a sale. The expression is not 
 " open," but " over." The only liberty to be allowed by that was a liberty 
 for the Plaintiff" to retract. 
 
 But, taking it as an offer, the meaning was, that at any day or 
 hour within the interval named, the Plaintiff had a riglit to indicate 
 to the Defendant his acceptance, and from that moment the Defendant 
 would have had no right of retractation. Then, was there a retractation 
 before acceptance ? To be a retractation, there must be a notification 
 to the other party. A pure resolve within the recesses of tlie vendor's 
 own mind is not suflicient. There was no communication to the Plaintiff'. 
 He accepted on two several occasions. There could have been no parting 
 with the property without communication with him. He was told that 
 the offer was to be left over. 
 
 The grounds of the decision in Coohe v. OxLey^ have been abundantly 
 explained by Mr. Benjamin, in his work on Sales. It was decided simply 
 on a point of pleading. 
 
 Bacon, V.C, after remarking that the case involved no question of 
 unfairness or inequality, and after stating the terms of the document 
 of the 10th of June, 1874, and the statement of tlie Defendant's case 
 as given in his answer, continued : — 
 
 I consider that to be one agreement, and I tliink the terms of the 
 agreement put an end to any question of niulum pactum. I think the 
 inducement for the Plaintiff to enter into the contract was tlie Defendant's 
 compliance with the Plamtiff's request that there should be some time 
 allowed to him to determine whether he would accept it or not. But 
 whether the letter is read with or without the postscript, it is, in my 
 judgment, as plain and clear a contract for sale as can be expressed in 
 words, one of the terms of that contract being that the Plaintiff shall not 
 
 > Law Kep. 4 Eq. 9, 12. = 3 T. R. i!53.
 
 104 DICKINSON V. DODDS. [CHAP. I 
 
 be called upon to accept, or to testify his acceptance, until 9 o'clock 
 on the morning of the 12th of June. I see, therefore, no reason why the 
 Court should not enforce the specific performance of tlie contract, if it 
 finds that all the conditions liave been complied with. 
 
 Then what are the facts 1 It is clear that a plain, explicit acceptance 
 of the contract was, on Thursday, the 11th of June, delivered by the 
 Plaintiff at tlie place of abode of the Defendant, and ouglit to have come 
 to his hands. Wliether it came to his hands or not, the fact remains that, 
 within tlie time limited, the Plaintifi' did accept and testify his acceptance. 
 From that moment the Plaintiff was bound, and the Defendant could 
 at any time, notwitlistanding Allan, have filed a bill against the Plaintiff 
 for the specific pei'formance of the contract wliich he had entered into, 
 and which the Defendant had accepted. 
 
 I am at a loss to guess upon what ground it can be said that it is 
 not a contract which the Court will enforce. It cannot be on the ground 
 that the Defendant had entered into a contract \vith Allan, because, giving 
 to the Defendant all the latitude which can be desired, admitting that he 
 had the same time to change his mind as he, by the agreement, gave 
 to the Plaintiff — tlie law, I take it, is clear on the authorities, that if 
 a contract, unilateral in its shape, is completed by tlie acceptance of tlie 
 party on the other side, it becomes a perfectly valid and binding contract. 
 It may be withdrawn from by one of the parties in tlie meantime, but, in 
 order to be withdrawn from, information of that fact must be conveyed to 
 the miiid of the person wlio is to be affected by it. It will not do for the 
 Defendant to say, " I made up my mind that I would withdraw, but I did 
 not tell the Plaintiff; I did not say anything to the Plaintiff until after 
 he had told me by a written notice and with a loud voice that he accepted 
 tlie option wliich had been left to him by the agreement." In my opinion, 
 after that hour on Friday, earlier than nine o'clock, when the Plaintiff 
 and Defendant met, if not before, the contract was completed, and neither 
 party could retire from it. 
 
 It is said that tlie authorities justify the Defendant's contention that 
 he is not bound to perform this agreement, and the case of Cooke v. 
 Oxlei/' was referred to. But I find that the judgment in Cooke v. 
 Oxlei/ went solely upon the pleadings. It was a rule to shew cause 
 why judgment should not be arrested, therefore it must have been upon 
 the pleadings. Now, the pleadings were that the vendor in that case 
 proposed to sell to the Defendant. Tliere was no suggestion of any 
 agreement which could be enforced. The Defendant proposed to the 
 Plaintiff to sell and deliver, if the Plaintiff would agree to purchase upon 
 tbe terms ottered, and give notice at an earlier hour than four of the after- 
 noon of that day ; and the Plaintiff says he agreed to purchase, but does 
 not say the Defendant agreed to sell. He agreed to purchase, and gave 
 notice before four o'clock in the afternoon. Although the case is not so 
 
 1 3 T. K. C53.
 
 CHAP. l] DICKINSON V. DODDS. 105 
 
 clearly and satisfactorily reported as might be desired, it is only necessary 
 to read the judgment to see that it proceeds solely upon this allegation in 
 the pleadings. Mr. Justice Buller says, "As to the subsequent time, the 
 promise can only be supportetl upon the ground of a new contract made at 
 four o'clock ; but there was no pretence for that." Nor was there the 
 slightest allegation in the pleadings for that ; and judgment was given 
 against the Plaintiti'. 
 
 Routledge v. Grant ' is plainly distinguishable from this case upon 
 the grounds which have been mentioned. Tliere the contract was to sell 
 on certain terms ; possession to be given upon a particular day. Those 
 terms were varied, and therefore no agreement was come to ; and when 
 the intended purchaser was willing to relinquish the condition which 
 he imposed, the other said, " No, I withdraw ; I have made up my mind 
 not to sell to you ;" and the judgment of the Court was that he was 
 perfectly right. 
 
 Then Warner v. Willington' seems to point out the law in the 
 clearest and most distinct manner possible. An otter was made — call it 
 an agreement or offer, it is quite indifferent. It was so far an offer, that 
 it was not to be binding unless there was an acceptance, and before 
 acceptance was made, the offer was retracted, the agreement was rescinded, 
 and the person who had then the character of vendor declined to go 
 further with the arrangement, which had been begun by what had passed 
 between them. In the present case I read the agreement as a positive 
 engagement on the part of the Defendant Dodds that he will sell for 
 £800, and, not a promise, but, an agreement, part of the same instrument, 
 that the Plaintiff shall not be called upon to express his acquiescence 
 in that agreement until Friday at nine o'clock. Befoi-e Friday at nine 
 o'clock the Defendant receives notice of acceptance. Upon what ground 
 can the Defendant now be let off his contract ? It is said that Allan can 
 sustain his agreement with the Defendant, because at the time when they 
 entered into the contract the Defendant was possessed of the property, 
 and the Plaintiff had nothing to do with it. But it would be opening the 
 door to fraud of the most flagrant description if it was permitted to a 
 Defendant, the owner of property, to enter into a binding contract to sell, 
 and then sell it to somebody else and say that by the fact of such second 
 sale he has deprived himself of the property which he has agreed to sell 
 by the first contract. That is what Allan says in substance, for he 
 .says that the sale to him was a retractation which deprived Doddg of 
 the equitable interest he had in the property, although the legal estate 
 remained in him. But by the fact of the agreement, and by the relation 
 back of the acceptance (for such I must hold to be the law) to the date of 
 the agreement, the property in equity was the property of the Plaintiff, 
 and Dodds had nothing to sell to Allan. The property remained intact, 
 unaffected by any contract with Allan, and there is no ground, in mv 
 » 4 Bing. 653. ' 3 Drew. 523.
 
 106 DICKINSON V. UODDS. [CHAP. I 
 
 opinion, for the contention that the contract with Allan can be supported. 
 It would be doing violence to principles perfectly well known and often 
 acted upon in this Court. I think the Plaintiff has made out very 
 satisfactorily his title to a decree for specific performance, both as having 
 the equitable interest, which he asserts is vested in him, and as being 
 a purchaser of the property for valuable consideration witliout notice 
 against both Dodds, the vendor, and Allan, who has entered into the 
 contract with him. 
 
 There will be a decree for specific performance, with a declaration 
 that Allan has no interest in the property ; and the Plaintiff will be at 
 liberty to deduct his costs of the suit out of his purchase-money. 
 
 From this decision both the Defendants appealed, and the appeals 
 were heard on the 31st of March and the first of April, 1876. 
 
 Swansion, Q.C. {Crossley with liim) for the Defendant Dodds. 
 
 Sir H. Jachson, Q.C. {Gazdar with liim), for the Defendant Allan. 
 
 Kay, Q.C, and Caldecott, for the Plaintiff. 
 
 The arguments amounted to a repetition of those before the Vice- 
 Chancellor. In addition to the authorities then cited the following cases 
 were referred to: Thomhiiry v. BevilV ; Taylor v. Wakefield'; Head 
 V. Diggoyi^ ; Palmer v. Scott '. 
 
 James, L.J., after referring to the document of the 10th of June, 
 1874, continued: — 
 
 The document, though beginning "I hereby agree to sell," was nothing 
 but an offer, and was only intended to be an offer, for the Plaintiff himself 
 tells us that he required time to consider whether he would enter into an 
 agreement or not. Unless both parties had then agreed there was no 
 concluded agreement then made ; it was in effect and substance only an 
 offer to sell. The Plaintiff, being minded not to complete the bargain at 
 that time, added this memorandum — "Tins offer to be left over until 
 Friday, 9 o'clock a.m., 12th June, 1871." That shews it was only an 
 offer. There was no consideration given for the undertaking or promise, 
 to whatever extent it may be considered binding, to keep -the property 
 unsold until 9 o'clock on Friday morning ; but apparently Dickinson was 
 of opinion, and probably Dodds was of the same opinion, that he (Dodds) 
 was bound by that promise, and could not in any way withdraw from 
 it, or retract it, until 9 o'clock on Friday morning, and this probably 
 explains a good deal of what afterwards took place. But it is clear 
 
 1 Y. and C. Ch. 554. = 6 E. & B. 765. 
 
 ^ 3 Man. & By. 97. •> 1 Euss. & My. 391.
 
 CHAP. l] DICKINSON V. DODDS. 107 
 
 settled law, on one of the clearest principles of law, that this promise, 
 being a mere nudum pactum, was not binding, and that at any moment 
 before a complete acceptance by Dickinson of the offer, Dodds was as 
 free as Dickinson himself. Well, that Ijcing the state of things, it is said 
 that the only mode in which Dodds could assert that freedom was by 
 actually and distinctly saying to Dickinson, " Now I withdraw my offer." 
 It appears to me that there is neither principle nor authority for the 
 proposition that there must be an express and actual withdrawal of the 
 offer, or what is called a retractation. It must, to constitute a contract, 
 appear that the two minds were at one, at the same moment of time, that 
 is, that there was an offer continuing up to the time of the acceptance. 
 If there was not such a continuing offer, then the acceptance comes to 
 nothing. Of course it may well be that the one man is bound in some 
 way or other to let the other man know that his mind with regard 
 to the offer has been changed ; but in this case, beyond all question, 
 the Plaintiff knew that Dodds was no longer minded to sell the property 
 to him as plainly and clearly as if Dodds had told him in so many words, 
 " I withdraw the offer." This is evident from the Plaintiff's own state- 
 ments in the bill. 
 
 The Plaintiff says in effect that, having heard and knowing that 
 Dodds was no longer minded to sell to him, and that he was selling 
 or had sold to some one else, thinking that he could not in point of 
 law withdraw his offer, meaning to fix him to it, and endeavouring to 
 bind him, " I went to the house where he was lodging, and saw liis 
 mother-in-law, and left with her an acceptance of the offer, knowing 
 all the while that he had entirely changed his mind. I got an agent 
 to watch for him at 7 o'clock the next morning, and I went to the train 
 just before 9 o'clock, in order that I might catch him and give him my 
 notice of acceptance just before 9 o'clock, and when that occurred he told 
 my agent, and he told me, you are too late, and he then threw back 
 the paper." It is to my mind quite clear that before there was any 
 attempt at acceptance by the Plaintiff, he was perfectly well aware that 
 Dodds had changed liis mind, and that he had in fact agreed to sell the 
 property to Allayi. It is impossible, therefore, to say there was ever that 
 existence of the same mind between the two parties which is essential 
 in point of law to the making of an agreement. I am of opinion, there- 
 fore, that the Plaintiff has failed to prove that there was any binding 
 contract between Dodds and liimself. 
 
 Mellish, L.J. : — 
 
 I am of the same opinion. The first question is, whether this document 
 of the 10th of June, 1874, which was signed by Dodds, was an agreement 
 to sell, or only an offer to sell, the property therein mentioned to Dickinson; 
 and I am clearly of opinion that it was only an offer, Although it is in the 
 first part of it, independently of the postscript, worded as an agreement.
 
 108 DICKINSON V. DODDS. [CHAP. I 
 
 T apprehend that, until acceptance, so that botli parties are Ijound, even 
 though an instrument is so worded as to express that both parties agree, it 
 is in point of law only an oiler, and, until both parties are bound, neither 
 party is bound. It is not necessary that both parties should be bound 
 within the Statute of Frauds, for, if one party makes an offer in writing, 
 and the other accepts it verbally, that will be sufficient to bind tlie person 
 who has signed the written document. But, if there be no agreement, 
 either verbally or in writing, then, until acceptance, it is in point of 
 law an offer only, although worded as if it were an agreement. But 
 it is iiardly necessary to resort to that doctrine in the present case, because 
 the postscript calls it an otter, and says, " This offer to be left over until 
 Friday, 9 o'clock a.m." Well, then, this being only an offer, the law 
 says — and it is a perfectly clear rule of law — that, although it is said that 
 the offer is to be left open until Friday morning at 9 o'clock, that did not 
 bind Dodds. He was not in point of law bound to hold the oflTer over 
 until 9 o'clock on Friday morning. He was not so bound either in law or 
 in equity. Well, that being so, when on the next day he made an agree- 
 ment with Allan to sell the propei-ty to him, I am not aware of any ground 
 on which it can be said that that contract with Allan was not as good and 
 binding a contract as ever was made. Assuming Allan to have known 
 (there is some dispute about it, and Allan does not admit that he knew of 
 it, but I will assume that he did) that Dodds had made the offer to 
 Dickinson, and had given him till Friday morning at 9 o'clock to accept it, 
 still in point of law that could not prevent Allan from making a more 
 favourable offer than Dickinson, and entering at once into a binding 
 agreement ■ndth Dodds. 
 
 Then Dickinson is informed by Berry that the property has been 
 sold by Dodds to Allan. Berry does not tell us from whom he heard 
 it, but he says that he did hear it, that he knew it, and that he informed 
 Dickinson of it. Now, stopping there, the question which arises is this — 
 If an off'er has been made for the sale of property, and before that otter is 
 accepted, the person who has made the otter enters into a binding agree- 
 ment to sell the property to somebody else, and the person to whom the 
 oflfer was first made receives notice in some way that the property has 
 been sold to another person, can he after that make a binding contract by 
 the acceptance of the off'er 1 I am of opinion that he cannot. The law 
 may be right or wrong in saying that a person who has given to another a 
 certain time within which to accept an off'er is not bound by his promise 
 to give that time ; but, if he is not bound by that promise, and may still 
 sell the property to some one else, and if it be the law that, in order to 
 make a contract, the two minds must be in agreement at some one time, 
 that is, at the time of tlie acceptance, how is it possible that when the 
 person to whom the off'er has been made knows that the person who 
 lias made the otter l*as sold the property to someone else, and that, in fact, 
 he has not remained in the same mind to sell it to him, he can be at
 
 CHAP, l] DICKINSON V. DODDS. 10!) 
 
 liberty to accept the offer and thereby make a binding contract 1 It seems 
 to me that would be simply absurd. If a man makes an offer to sell 
 a particular horse in his stable, and says, " I will give you until the day 
 after to-morrow to accept the offer," and the next day goes and sells 
 the horse to somebody else, and receives the purchase-money from him, 
 can the person to whom the offer was originally made then come and say, 
 " I accept," so as to make a binding contract, and so as to be entitled 
 to recover damages for the non-delivery of the horse 1 If the rule of law 
 is that a mere offer to sell property, whicli can be withdrawn at any time, 
 and wliich is made dependent on the acceptance of the person to whom it 
 is made, is a mere nudum pactum, how is it possible that the person to 
 whom the offer has been made can by acceptance make a binding contract 
 after he knows that the person who has made the offer has sold the 
 property to some one else "i It is admitted law that, if a man who makes 
 an offer dies, the offer cannot be accepted after he is dead, and parting 
 with the property has very much the same effect as the death of the owner, 
 for it makes the performance of the offer impossible. I am clearly of 
 opinion that, just as when a man who has made an offer dies before it 
 is accepted it is impossible that it can then be accepted, so when once the 
 person to whom the offer was made knows that the property has lieeu sold 
 to someone else, it is too late for him to accept the offer, and on that 
 ground I am clearly of opinion that there was no binding contract for the 
 sale of this property by Dodds to Dickinson, and even if there had been, it 
 seems to me that the sale of the property to Allan was first in point of 
 time. However, it is not necessary to consider, if there had been two 
 binding contracts, which of them would be entitled to priority in equity, 
 because there is no binding contract between Dodds and Dickhison. 
 
 Baggallay, J.A. : — 
 
 I entirely concur in the judgments wliich have been pronounced. 
 
 James, L. J. : — The bill will be dismissed with costs. 
 
 ADAMS AND OTHERS v. LINDSELL AND ANOTHER. 
 
 In the King's Bench, June 5, 1818. 
 
 [Reported in 1 Barnewall & Alderson, 681.] 
 
 Action for non-deUvery of wool according to agreement. At the 
 trial at the last Lent Assizes for the county of Worcester, before Bur- 
 rough, J., it appeared that the defendants, wlio were dealers in wool at 
 St. Ives, in the county of Huntingdon, had, on Tuesday, tlie 2nd of
 
 no ADAMS V. LINDSELL. [CHAP. I 
 
 September, 1817, written the following letter to the plaintiffs, who were 
 woollen manufacturers residing in Bromsgrove, Worcestershire : " We now 
 offer you eight hundred tods of wether fleeces, of a good fair quality 
 of our country wool, at 35s. &d. per tod, to be delivered at Leicester, 
 and to be paid for by two months' bill in two months, and to be weighed 
 up by your agent within fourteen days, receiving your ansiver in course 
 of post." 
 
 This letter was misdirected by the defendants to Bromsgrove, Leicester- 
 shire, in consequence of which it was not received by the plaintiffs in 
 Worcestershire till 7 p. m. on Friday, September 5th. On that evening 
 the plaintiffs wrote an answer, agreeing to accept the wool on the terms 
 proposed. The course of the post between St. Ives and Bromsgrove is 
 through London, and consequently this answer was not received by the 
 defendants till Tuesday, September 9th. On the Monday, September 
 8th, the defendants, not having, as they expected, received an answer 
 on Sunday, September 7th (which, in case their letter had not been 
 misdirected, would have been in the usual course of the post), sold 
 the wool in question to another person. Under these circumstances, the 
 learned Judge held that, the delay having been occasioned by the neglect 
 of the defendants, the jury must take it that the answer did come back 
 in due course of post ; and that then the defendants were liable for 
 the loss that had been sustained : and the plaintiffs accordingly recovered 
 a verdict. 
 
 Jervis, having in Easter Term obtained a rule nisi for a new trial, on 
 the ground that there was no binding contract between the parties, 
 
 Dauncey, Puller, and Richardson showed cause. They contended that, 
 at the moment of the acceptance of tlie offer of the defendants by the 
 plaintiffs, the former became bound. And that was on Friday evening, when 
 there had been no change of circumstances. They were then stopped by 
 the Coui't, who called upon 
 
 Jervis and Campbell in support of the rule. They relied on Payne 
 V. Cave,^ and more particularly on Cooke v. Oxley? In that case, Oxley, 
 who had proposed to sell goods to Cooke, and given him a certain time, at 
 his request, to determine whether he would buy them or not, was iield 
 not liable to the performance of the contract, even though Cooke, within 
 the specified time, had determined to buy them, and given Oxley notice to 
 that effect. So here the defendants who have proposed by letter to sell 
 this wool, are not to be held liable, even though it be now admitted that 
 the answer did come back in due course of post. Till the plaintiffs' 
 answer was actually received, there could be no binding contract between 
 the parties ; and before then the defendants had retracted their offer by 
 selling the wool to other persons. But 
 
 The Court said, that if that were so, no contract could ever be com- 
 pleted by the post. For if the defendants were not bound by their offer 
 1 3 T. E. 148. = 3 T. E. 653.
 
 CHAP. l] BYRNE & CO. V. LEON VAN TIENHOVEN & CO. Ill 
 
 when accepted by the plaintiffs till the answer was received, tlien tiic 
 plaintifls ouglit not to be bound tUl after they had received the notiticatiou 
 that the defendants had received their answer and assented to it. And 
 so it might go on ad injinitii/m. The defendants must be considered in law 
 as making, during every instant of the time their letter was travelling, the 
 same identical ofler to the plaintifls ; and then the contract is completed 
 by the acceptance of it by the latter. Then as to the delay in notifying 
 the acceptance, that arises entirely fi'om the mistake of the defendants, 
 and it therefore must be taken as against them, that the plaintifls' answer 
 was received in course of post. 
 
 Rule discharged. 
 
 BYRNE & Co. V. LEON VAN TIENHOVEN & Co. 
 
 In the High Court of Justice, March 6, 1880. 
 
 [Beported in 5 Common Pleas Division, 344.] 
 
 Action tried at Cardiff assizes, before Lindley, J., without a jury. 
 
 £. T. Williams and B. Francis Williams, for the plaintiffs. 
 M'Inti/re, Q.C., and Hufjhes, for tlie defendants. 
 
 Ctcr. adv. vult. 
 
 March 6. Lindley, J. This was an action for the recovery of 
 damages for the non-delivery by the defendants to the plaintiffs of 
 1000 boxes of tinplates, pursuant to an alleged contract, which I will 
 refer to presently. The action was tried at Cardiff before myself without 
 a jury ; and it was agreed at the trial that in the event of the plaintifls 
 being entitled to damages they should be 375^. 
 
 The defendants carried on business at Cardiff and the plaintiffs at 
 New York, and it takes ten or eleven days for a letter posted at either 
 place to reach the other. The alleged contract consists of a letter 
 written by the defendants to the plaintiffs on the 1st of October, 1879, 
 and received by them on the 1 1th, and accepted by telegram and letter 
 sent to the defendants on tlie 11th and 15th of October respectively. 
 These letters and telegram were as follows : — [The learned judge read tlie 
 letter of the 1st of October, 1879, from the defendants to the plaintifls. 
 It contained a reference to the price of tinplates branded " Hensol," and 
 the "offer of 1000 boxes of this brand 14 x 20 at 1.5«. 6d. per box f. o. b. 
 here with 1 per cent, for our commission ; terms, four months' bankers' 
 acceptance on London or Liverpool against shipping documents, but 
 subject to your cable on or before the 1.5th inst. I\ere." The answer was a
 
 112 BYRNE & CO. V. LEON VAN TIENHOVEN & CO. [CIIAP. I 
 
 telegram from the plaintiflFs to the defendants sent on the 11th of October, 
 1879: " Accept thousand Hensols." On the 15th of October, 1879, the 
 plaintiifs wrote to the defendants : " We have to thank you for your 
 valued letter under date 1st inst., which we had on Saturday p.m., and 
 immediately cabled acceptance of the 1000 boxes 'Hensol,' Ic. 14/20 as 
 offered. Against this transaction we have pleasure in handing you 
 herewith the Canadian Bank of Commerce letter of credit No. 78, October 
 13th, on Messrs. A. R. McMaster & Brothers, London, for lOOO;.. . "Will 
 thank you to ship the 1000 'Hensols' without delay."] These letters and 
 telegram would, if they stood alone, plainly constitute a contract binding 
 on both parties. The defendants in their pleadings say that there was no 
 sufficient writing within the Statute of Frauds, and that they contracted 
 only as agents ; but these contentions were very properly abandoned as 
 untenable, and do not require further notice. The defendants, however, 
 raise two other defences to the action which remain to be considered. 
 First, they say that the offer made by their letter of the 1st of October 
 was revoked by them before it had been accepted by the plaintiffs by their 
 telegram of the 11th or letter of the 15th. The facts as to these are as 
 follows : On the 8th of October the defendants wrote and sent by post to 
 the plaintiffs a letter withdrawing their offer of the 1st. The material 
 part of this letter was as follows: "Confirming our respects of the 1st 
 inst. we hasten to inform you that there having been a regular panic in 
 the tinplate market during the last few days, which has caused prices to 
 run up about twenty-five per cent, we are reluctantly compelled to with- 
 draw any offer we have made to our constituents, and must therefore also 
 consider our offer to you for 1000 boxes 'Hensols' at \7s. 6d. to be 
 cancelled from this date." This letter of the 8th of October reached the 
 plaintiffs on the 20th of October. On the same day the plaintifi.s 
 telegraphed to the defendants demanding shipment, and sent them a 
 letter insisting on completion of the contract. [The learned judge read 
 the letter. In it the plaintiffs expressed astonishment at the contents of 
 the letter of the 8th, recapitulated the transactions, and said " practically 
 and in fact a contract for 1000 boxes came into existence between you and 
 ourselves. It requires the consent of both parties to a contract to cancel 
 same. If instead of writing to us on the 8th you had cabled ' offer with- 
 drawn,' you would have protected yourselves and us too. We disposed of 
 the 1000 boxes on the 17th at a net profit of 1850 dollars. ..We write our 
 friend Philip S. Philips, Esq., of Aberklleiy, requesting him to call on you 
 and demand delivery as agreed." In a postscript they added, " You sjieak 
 of offer of 1000 boxes Hensol at 17s. Qd. The only fii-m offer we received 
 from you under date 1st of October was 1000 boxes at 15s. 6d., and ten 
 per cent. f. o. b. Cardiff; we cable you to-night 'demand shipment.'"] 
 This letter is followed by one from the defendants to the plaintiffs of the 
 25th of October refusing to complete. [The learned judge read it. The 
 defendants acknowledged the receipt of the cable message of tlie 20th,
 
 CHAP. l] BYRNE & CO. V. LEON VAN TIENIIOVEN & CO. 113 
 
 inclosed the credit note sent in tlie letter of the 15th, nnd luldod, "Our 
 offer having been withdrawn liy our letter of the 8th inst. we now rot urn 
 the above credit for which we have no further need, liut take this 
 opportunity to observe that in case of any future business proposals 
 between us, we must request you to conform to our rules and principles, 
 whicli require bankers' credit in this country, whereas the firm of A. R. 
 McMaster & Brothers are not classified as such."] 
 
 There is no doubt that an offer can be withdrawn before it is accepted, 
 and it is immaterial whether the offer is expressed to be open for 
 acceptance for a given time or not : Routledge v. Grant^. For the decision 
 of the present case, however, it is necessary to consider two other questions, 
 viz.: 1. Whether a withdrawal of an offer has any effect until it is com- 
 municated to the person to whom the offer has been sent % 2. Whether 
 posting a letter of withdrawal is a communication to the person to whom 
 the letter is sent ? 
 
 It is curious that neither of these questions appears to have been 
 actually decided in this country. As regards the first question, I am 
 aware that Pothier and some other writers of celebrity are of opinion that 
 there can be no contract if an offer is withdrawn before it is accepted, 
 although the withdrawal is not communicated to the person to whom the 
 offer has been made. The reason for this opinion is that there is not in 
 fact any such consent by both parties as is essential to constitute a 
 contract between them. Against this view, however, it has been urged 
 that a state of mind not notified cannot be regarded in dealings between 
 man and man ; and that an uncommunicated revocation is for all practical 
 purposes and in point of law no revocation at all. This is the view taken 
 in the United States : see Tayloe v. Merchants Fire Insurance Co', cited 
 in Benjamin on Sales, pp. 56 — 58, and it is adopted by Mr Benjamin. 
 The same \\ew is taken by Mr Pollock in his excellent work on Principles 
 of Contract, ed. ii., p. 10, and by Mr Leake in his Digest of the Law of 
 Contracts, p. 43. This view, moreover, appears to me much more in 
 accordance with the general principles of Englisli law than tlie view 
 maintained by Pothier. I pass, therefore, to the next question, viz., 
 wliether posting tlie letter of revocation was a suflicient communication of 
 it to the plaintiff. The offer was posted on the 1st of October, the with- 
 drawal was posted on the 8th, and did not reach the plaintiff until after 
 he had posted his letter of tlie 11th, accepting the offer. It may be taken 
 as now settled that where an offer is made and accepted by letters sent 
 through the post, the contract is completed the moment the letter 
 accepting the offer is posted : Harris^ Case' ; Dunhp v. Iliggins*, even 
 although it never reaches its destination. When, however, these 
 autliorities are looked at, it will be seen that they are based upon tiie 
 principle that the writer of the offer has expressly or impliedly assented to 
 
 1 4 Biug. 653. 29 How. Sup. Ct. Eep. 390. 
 
 3 Law Rep. 7 Ch. 587. * 1 H. L. 381. 
 
 F. 8
 
 114 BYRNE V. VAN TIENHOVEN. [CHAP. I 
 
 treat an answer to him by a letter duly posted as a sufficient acceptance 
 and notification to himself, or, in other words, lie has made the post office 
 his agent to receive the acceptance and notification of it. But this 
 principle appears to me to be inapplicable to the case of the withdrawal of 
 an offer. In this particular case I can find no evidence of any authority 
 in fact given by the plaintiffs to the defendants to notify a withdrawal of 
 their offer by merely posting a letter ; and there is no legal principle or 
 decision which compels me to hold, contrary to the fact, that the letter of 
 the 8th of October is to be treated as communicated to tlie plaintifl' on 
 that day or on any day before the 20th, when the letter reached them. 
 But before that letter had reached the plaintiffs they had accepted the 
 offer, both by telegram and by post ; and they had themselves resold the 
 tin plates at a profit. In my opinion the withdrawal by the defendants 
 on the 8th of October of their offer of the 1st was inoperative ; and a 
 complete contract binding on both parties was entered into on the 1 1th of 
 October, when the plaintiffs accepted the offer of the 1st, which they had 
 no reason to suppose had been withdrawn. Before leaving this part of the 
 case it may be as well to point out the extreme injustice and inconvenience 
 which any other conclusion would produce. If the defendants' contention 
 were to prevail no person who had received an offer by post and had 
 accepted it would know his position until he had waited such a time as to 
 be quite sure that a letter withdrawing tlie offer had not been posted 
 before his acceptance of it. It appears to me that both legal principles, 
 and practical convenience require that a person who has accepted an offer 
 not known to him to have been revoked, shall be in a position safely to 
 act upon the footing that the offer and acceptance constitute a contract 
 binding on both parties. 
 
 The defendants' next defence is that, as the plaintiffs never sent 
 a banker's acceptance on London or Liverpool as stipulated in the 
 contract, they cannot maintain any action for its breach. The corre- 
 spondence which preceded the contract satisfies me that the defendants 
 attached importance to this particular mode of payment ; and although 
 the plaintifis sent letters of credit which were practically as good as a 
 banker's acceptance, yet I cannot say that they did in fact send a banker's 
 acceptance according to the contract. 
 
 By the terms of the contract bankers' acceptances on London or 
 Liverpool were to be sent against, — i.e., were to be exchanged for — shipping 
 documents ; and if the defendants had been ready and willing to perform 
 the contract on their part on receiving proper bankers' acceptances, I 
 should have been of opinion that the plaintiffs would not have sustained 
 this action. But it is perfectly manifest from the correspondence that the 
 defendants did not refuse to perform the contract on any such ground as 
 this. It is true that the defendants in their letter of the 31st of October, 
 say that, " even if we had not withdrawn our offer we would all the same 
 have returned your credit," and the defendants' solicitors in tlieir letter of
 
 CHAP, l] BYRNE V. VAN TIENHOVEN. 115 
 
 the 26tli of November, s;iy tlwit, " if your clients (i.e. the phiintifTs), liad 
 fultilled the terms of the contract at the outset the goods were ready to l)e 
 sliipped ;" but the defendants' own letters of the 8th, 13th, and 25th of 
 October, shew conclusively that this was not the ease and that the 
 defendants stood on their notice of withdrawal and would not have 
 performed the contract even if bankers' acceptances had been sent. 
 Their letter of the 25th of October in wliich they return the plaintiffs' 
 first letter of credit is explicit on this point. The defendants do not 
 return the letter of credit because it is not a banker's acceptance, but 
 because the ofler was withdrawn ; and the inference I draw from that 
 letter is that if the oifer had not been withdrawn the defendants would 
 not have returned the letter of credit although in future transactions they 
 might have been more particular. In face of this refusal, it was useless 
 for the plaintiffs to send a banker's acceptance, and although when they 
 found their first letter of credit returned they sent another which was 
 declined, still the defendants never receded from their first position, or 
 expressed any readiness to ship the goods on receiving a banker's 
 acceptance ; and it is plain to my mind that they wei'e not prepared to do 
 so. On the other hand, I am satisfied that if the defendants had taken 
 this ground the plaintiffs would have sent bankers' acceptances in exchange 
 for shipping documents, and I infer as a fact that tlie plaintiffs always 
 were ready and willing to perform the contract on their part, although 
 they did not in fact tender proper bankers' acceptances. It was contended 
 that by pressing the defendants to perform their contract the plaintiffs 
 treated it as still subsisting and could not treat the defendants as having 
 broken it, and a passage in Mr. Benjamin's book on Sales, p. 454, was 
 referred to in support of this contention. But, when the plaintiffs found 
 that the defendants were inflexible, and would not perform the contract at 
 all, they had, in my opinion, a right to treat it as at an end and to bring 
 an action for its breach. It would indeed be strange if the plaintiffs by 
 trying to persuade the defendants to perform their contract w'ere to lose 
 their right to sue for its non-performance when their patience was 
 exhausted. The authorities referred to by Mr. Benjamin (viz., Avery v. 
 Bowden^ and others of that class), sliew that as the plaintitts did not wlien 
 the defendants first refused to perform the contract, treat that refusal as 
 a breach, the plaintiffs cannot now treat the contract as broken at the 
 time of such refusal. But I have found no authority to shew that a con- 
 tinued refusal by tlie defendants to perform the contract cannot be treated 
 by the plaintifls as a breach of it by the defendants. On the conti'ary 
 Ripley V. MeClure', and Cort v. Amberyate, tfcc, Ry. Co? shew that the 
 continued refusal by the defendants operated as a continued waiver of a 
 tender of bankers' acceptances and enable the plaintifls to sustain this 
 action. In the present instance it is not necessary to determine exactly 
 when the contract can be treated by the plaintiffs as broken by the 
 1 5 E. & B. 714. » 4 Ex. 345. ' 17 Q. B. 127. 
 
 8—2
 
 lie DUNLOP ('. HIGGINS. [CHAP. I 
 
 defendants. It is sutlicient to say that whilst the plaintiffs were always 
 ready and willing to perform the contract on their part the defendants 
 wrongfully and persistently refused to perform the contract on their part ; 
 and before action there was a breach liy the defendants not waived by 
 the plaintifts. For the reasons above stated I give judgment for the 
 plaintiffs for 375?. and costs. 
 
 Judgment for plaintiff's. 
 
 DUNLOP V. HIGGINS. 
 
 In the House of Lords, February 21, 22, 24, 1848. 
 
 DuNLOP AND Others, Appellants. 
 
 Vincent Higgins and Others, Respondents. 
 
 [Reported in 1 House of Lords Cases, 381.] 
 
 This was an appeal against a decree of the Court of Session, made 
 under the following circumstances : Messrs. Dunlop & Co. were iron 
 masters in Gla.sgow, and Messrs. Higgins & Co. were iron merchants 
 in Liverpool. Messrs. Higgins had written to Messrs. Dunlop respect- 
 ing the price of iron, and received the following answer : " Glasgow, 
 22d January, 1845. We .shall be glad to supply you with 2000 tons, 
 pigs, at 65 shillings per ton, net, delivered here." Messrs. Higgins 
 wrote the following reply: "Liverpool, 25th January, 1845. You 
 say 65s. net, for 2000 tons pigs. Does this mean for our usual four- 
 months' biin Please give us this information in course of post, as we 
 have to decide with other parties on Wednesday next." On the 28th 
 Messrs. Dunlop wrote, " Our quotation meant 65s. net, and not a four- 
 months' bill." This letter was received by Messrs. Higgins on the 30th 
 of January, and on the same day, and by post, but not by the first post 
 of that day, they despatched an answer in these terms : " We will 
 take the 2000 tons pigs you offer us. Your letter crossed ours of 
 yesterday, but we shall be glad to have your answer respecting the 
 additional 1000 tons. In your first letter you omitted to state any 
 terms; hence the delay." This letter was dated "31st January." It 
 was not delivered in Glasgow until 2 o'clock p.m. on the 1st of Feb- 
 ruary, and, on the same day, Messrs. Dunlop sent the following reply : 
 "Glasgow, 1st February, 1845. We have your letter of yesterday, but 
 are sorry that we cannot now enter the 2000 tons pig-iron, our offer of 
 the 28th not having been accepted in course." Messrs. Higgins wrote 
 on the 2d February to say that they had erroneously dated tlieir letter
 
 CHAP. l] DUNLOP v. HIGGINS. 117 
 
 on tlie 31st Januaiy, that it was really written and posted on the 30tli, 
 in proof of which they referred to the post-mark. They did not, liow- 
 ever, explain the delay whicli had taken place in its delivery. Tlio 
 iron was not furnished to them, and iron hax'ing risen very rapidly in 
 the market, the question whether tliere liad been a complete contract 
 between these parties was brought before a court of law. Messrs. 
 Higgins instituted a suit in the Court of Session for damages, as for 
 brcacli of contract. The defence of Messrs. Dunlop was, that tlieir 
 letter of the 28th, offering the contract, not liaving been answered in 
 due time, there had been no such acceptance as would convert that 
 offer into a lawful and liinding contiact ; that their letter having l)een 
 delivered at Liverpool before eiglit o'clock in the morning of the 30tli 
 of January, Messrs. Higgins ought, according to the usual practice of 
 merchants, to have answered it by the lirst post, which left Liverpool 
 at three o'clock p.m. on that day. A letter so dispatched would be 
 due in Glasgow at two o'clock p..ii. on the 31st of January; another 
 post left Liverpool for Glasgow every day at one o'clock A. m., and 
 letters to be despatched by that post must be put into the office during 
 the preceding evening, and if any letter had been sent by that post on 
 the morning of the 31st, it must have been delivered in Glasgow in the 
 regular course of post at eight o'clock in the morning of the 1st of 
 February. As no communication from Messrs. Higgins arrived by 
 either of these posts, Messrs. Dunlop contended that they were entitled 
 to tre^it tlieir oiler as not accepted, and that they were not bound to 
 wait until the third post delivered in Glasgow at two o'clock P. M. of 
 Saturday, the 1st of February (at wliich time Messrs. Higgins' letter 
 did actually arrive), before they entered into other contracts, the taking 
 of wliich would disable them from performing the contract they had 
 offered to Messrs. Higgins. 
 
 The cause came before Lord Ivory, as Lord Ordinary, who directed 
 an issue, which he settled in the following terms : — 
 
 "Whether, about the end of January, 18-l.'i, Messrs. Higgins pur- 
 chased from Messrs. Dunlop 2,000 tons of pig-iron, at tlie price of 65s. 
 per ton, and whether Messrs. Dunlop wrongfully failed to deliver tlie 
 same, to the damage, loss, and injury of the pursuers'! Damages laid 
 at G,000/." Tliis issue was tried before the Lord Justice Genei'al, when 
 it appeared that the letter of Messrs. Higgins, accepting the offer, was 
 written on the 30th; that it was posted a short time after the closing 
 of the bags for the despatch at three o'clock p. M. on that day, and 
 consequently did not leave Liverpool till ths despatch at one o'clock in 
 the morning of the 31st; that, in conseijuence of the slippery state of 
 the roads, the bag then sent did not arrive at Warrington till after tlie 
 departure of the down train that ought to have conveyed it, and that 
 tliis circumstance occasioned it to be delayed beyond the ordinary 
 liour of delivery. The Lord Justice General told the jury "tliat he
 
 118 DUNLOP V. HIGGINS. [CHAP. I 
 
 adopted the law as duly expounded in the case of Adams v. LindselV, 
 and which is as follows : ' A., by a letter, offers to sell to B. certain 
 specified goods, receiving an ansiver by return of post ; the letter being 
 misdirected, the answer notifyiiag the acceptance of the ofler arrived 
 two days later than it ought to have done ; on the day following that 
 when it would have arrived, if the original letter had been properly 
 directed, A. sold the goods to a third person,' and in which it was held 
 ' that there was a contract binding the parties from the moment the 
 ofTer was accepted, and that B. was entitled to recover against A. in 
 an action for not completing his contract.' " 
 
 The counsel for Messrs. Dunlop tendered the following exceptions : 
 The first exception related to evidence, and alleged "that no evidence 
 to show that the letter, purporting to be dated on the 31st, was really 
 written on the 30th of January, ought to have been admitted." The 
 other exceptions related to the charge, and were as follows : — 
 
 2. In so far as his Lordship directed the jury, in point of law, that if 
 Messrs. Higgins posted their acceptance of the ofi'er in due time ac- 
 cording to the usage of trade, they are not responsible for any casualties 
 in the post-ofEce establishment. 
 
 3. In so far as his Lordship did not direct the jury, in point of law, 
 that, if a merchant makes an ofler to a party at a distance by pos1> 
 letter, requiring to be answered within a certain time, and no answer 
 arrives within such time as it should arrive, if the party had written 
 and posted his letter within the time allowed, the offerer is free, tliough 
 the answer may have been actually written and posted in due time, if 
 he is not proved to be aware of accidental circumstances preventing the 
 due arrival of the answer. 
 
 4. In so far as his Lordship did not direct the jury, in point of law, 
 that, in the case above supposed, if an answer arrives, bearing a date 
 beyond the time limited as above for making answer, and arrives by a 
 mail, and is delivered at a time corresponding to such date, the offerer 
 is entitled to consider himself free to deal with the goods as his own, 
 either to sell or to hold, if he be not in the knowledge that the answer 
 received was truly written of an earlier date, and delayed in its arrival 
 by accident. 
 
 5. In so far as his Lordship did not direct the jury, in point of law, 
 that, in case of failure to deliver goods sold at a stipulated price, and 
 immediately deliverable, the true measure of damage is the difference 
 between the stipulated price and the market price, on or about the day 
 the contract is broken, or at or about the time when the purchaser might 
 have supplied himself. 
 
 These exceptions were afterwards argued before the judges of the 
 First Division, who pronounced an interlocutor, disallowing the excep- 
 tions ; and that interlocutor was the subject of the present appeal. 
 1 1 BarnewaU & Aldcrson, 681.
 
 CHAP. l] DUNLOP V. HIGGINS. 119 
 
 Mr. Bethell and Mr. Anderson, for the appellants. 
 
 The question raised in this case is one of considerable importance, 
 and the decision of it in accordance with the judgment of the court 
 below, will have the effect of I'cndering the acceptance of contracts a 
 matter of doubt and uncertainty. If the decision of the judges of the 
 Court of Session is right, a contract is complete when the acceptance 
 of the offer to enter into it is posted, although such acceptance may 
 not reach the person who made the offer till long after the time at 
 which, by the usage of trade, he is entitled to expect it. Such a de- 
 cision, if unreversed, will leave the person making an offer under the 
 necessity of waiting for an indefinite time in order to know whether 
 his offer has been accepted. During all this time he will be restrained 
 from freely dealing with his own property. 
 
 The exceptions here ought to have been sustained by the Court. 
 The first of them relates to the evidence offered at the trial. That evi- 
 dence was improperly admitted. The Court ought not to have received 
 evidence to contradict a written document. When a letter is sent to 
 a party, he has a right to assume that it is properly written, and is 
 entitled to rely on its contents. He is at least entitled to do so as 
 against the writer of the letter. The writer is not at liberty to show 
 those contents to be erroneous : at all events he is. not at liberty to do 
 so after the person receiving it has acted upon it, and thus to affect the 
 rights of that party, and to give himself rights to which, if the letter 
 had been correctly written, he would not have been entitled. To admit 
 such evidence is to unsettle all the rules of business, and to prevent 
 commercial men acting with that certainty and confidence wliich are 
 necessary for the proper conduct of commercial affairs. 
 
 [The Lord Chancellor. When a party sends a letter, actually 
 sent on the 30th, but dated by mistake on the 31st, may he not show 
 that that date had been put in by mistake ^] 
 
 It might be difficult to maintam the simple negative of that question, 
 but in considering the admissibility of such evidence, all the circum- 
 stances of the case must be referred to. In the present case, for 
 instance, as the letter was received on a day after that of its date, and 
 when, therefore, the person receiving it had no reason to suspect that 
 the date was erroneously given, his rights ought not to be afl'ected by 
 a sulisequent explanation ; and the evidence intended to afibrd that 
 explanation ought not therefore to have been admitted. 
 
 Then as to the second exception : if a letter sent is posted in due 
 time, but is not received in due time, who is to bear the loss consequent 
 upon its non-delivery? Certainly not the person to whom it is sent. 
 The fact that it is sent by the post-office makes no difference in the 
 matter. It is the same as if the letter was sent by a special messenger, 
 in which case it is plain that the person sending the messenger would 
 be responsible for any accident or delay. The appellants are not to be
 
 120 DUNLOP V. HIGGINS. [CHAP. I 
 
 made responsible for the casualties of the post-office, and surely they 
 cannot be made so in a case in which the persons sending an answer to 
 an offer which they had made, totally disregarded the ordinary usages 
 of commercial houses as to the time of sending such answer. 
 
 The clear principle, set forth in the third objection, is that wliich 
 ought to be adopted in all cases of this kind. Where an individual 
 makes an offer by post, stipulating for, or, by the nature of the business, 
 having the right to expect, an answer by return of post, the offer can 
 only endure for a limited time, and the making of it accompanied by 
 an implied stipulation that the answer shall be sent by return of post. 
 If that implied stipulation is not satisfied, the person making the offer 
 is released from it. When a person seeks to acquire a right, he is 
 bound to act with a degree of strictness, such as may not be required 
 where he is only endeavoui-ing to excuse himself from a liability. The 
 question of reasonableness of notice, which may be admitted in cases 
 of bills of exchange, cannot be introduced in a case where one party 
 seeks to enforce on another the acceptance of a contract. A bill of 
 exchange is already a binding contract ; no new right is acquired by 
 notice ; it is merely a necessary proceeding to enable the party giv-ing 
 it to enforce a riglit previously created. 
 
 Then as to the [fourth ■?] exception. In the case of a contract, the 
 acceptance of the offer creates the contract ; the acceptance implies that 
 both parties have knowledge of all the circumstances. On principle, it 
 is plain that the acceptance should be immediate, and that if there is a 
 delay in making that acceptance known, the ofierer is free. In order to 
 make the contract perfect, there ought to have been a co-existing assent. 
 Countess of Dumnore v. Alexander' . There, a lady havmg written to 
 another to engage a servant for her, and then sent a second letter to 
 countermand the first, and the two letters having been delivered to tlie 
 servant simultaneously, it was held that there was not a complete con- 
 tract, and that the servant was not entitled to wages. The Court of 
 King's Bench, in JTead v. Diggon^, acted upon the same principle. 
 There, A. and B. being together, B. offered goods to A. at a certain 
 price, and gave A. three days to make up his mind. The Court held 
 that this was not an absolute bargain, and that within the three days 
 B. had a right to retract. 
 
 Such are the principles which ought to govern this case. Then as to 
 authority. It is curious enough that this exact question seems never to 
 have arisen. That circumstance is some proof of the clearness of the 
 principle which is applicable to such transactions, for had there been 
 any question as to that principle, — had it been doubtful whether delay 
 might be excused, and whether, in spite of delay, a party guilty of it 
 might not still insist on a contract being complete, cases must have 
 ai'isen as to the degree of laxity permitted by the law in the acceptance 
 1 9 Shaw & Dunlop, 190. - 3 Maunmg & Eyland, 97.
 
 CHAP. l] DUNLOP V. HIGGINS. 121 
 
 of contracts. None such is to be found. The case of Adams v. Lhuhell ' 
 was the authority adopted by the Lord Justice General in his direction 
 to the jury : but that case does not justify his ruling. [The Lord 
 Chancellor. If the letter of acceptance is sent in the usual way, 
 is the sender still responsible for its due delivery?] If not, then 
 both parties are free. One cannot be bound while the other is free. 
 Eacli party takes an equal risk. But supposing delay is to be per- 
 mitted, to what extent is it to be allowed ? May the delay last one, two, 
 or three days, or a week, or a fortnight, or a month 1 If any delay is 
 to be permitted, the extent of it must be defined. Otherwise, all com- 
 mercial matters will be in a state of perpetual uncertainty. But, in 
 fact, no delay is allowed. Each party is bound to write by return of 
 post, and each is liable to the consequences of his own letter [not 1] arriv- 
 ing in time. Such appears to be the mercantile usage on the subject. 
 When an offer is made by one merchant to send to another a particular 
 commodity which varies in price, that offer is made subject to the obli- 
 gation of its being answered by return of post. It is therefore an offer 
 subject to a condition. It is conditional, in point both of time and 
 manner of acceptance. As to time, the offer enures till it can be 
 answered by return of post. If it is made on a condition, then it is 
 clearly not binding till that condition shall be accepted. Here, too, the 
 condition is a condition precedent. Nothing, therefore, can be substi- 
 tuted for it. 
 
 [The Lord Cu.^ncellor. Where is this condition imposed ?] 
 
 In mercantile usage, founded on law. The legal condition is to 
 return an answer in a particular time. Mercantile usage has fixed that 
 time as the return of post. No decision has ruled, as a point of legal 
 principle, that, if an individual addressed fails in performing this condi- 
 tion, still that the person making the offer is bound. The principle of 
 the Scotch law, as stated in M'Douall's Institutes, is the other way. It 
 is there said^ "Conditional obligations, properly so termed, are pre- 
 sently binding and irrevocable, and only the effect is suspended, but 
 sometimes the obligation is only to be contracted upon a condition 
 which affects the very substance of it. Thus an offer has an implied 
 condition of acceptance, whereby alone the consent of the other party 
 accedes and converts the offer into a contract ; so tliat it is not binding, 
 but ambulatory or revocable, till it is accepted, and therefore either 
 revocation by the offerer, or death of either party before acceptance, 
 voids it. The same rule holds in mutual contracts, —the one party 
 subscribing is not bound till the other suiiscrilje likewise." The law of 
 England is in conformity with the principle of the Scotcli law. 
 
 As the revocation by either party before acceptance makes the offer 
 void, the acceptance of the other side must be notified witliin a defi- 
 nite period of time; Stair's Institutes." This rule of notification is a 
 
 I 1 Barnewall & Alderson, 681. = Bk. 1. tit. 4, p. 98, fol. ed. ^ Tit. 2, § 8.
 
 122 DUNLOP V. HIGGINS. [cHAP. I 
 
 condition precedent in the English as well as tlie Scotch law. This 
 principle was acted on by the Court of King's Bench in the case of 
 Davison v. Mure '. That was the case of a ship which was captured by 
 the Americans while under convoy. The condition there was that the 
 master should make the best defence, and without it appeared to a 
 court-martial that he liad done so, he was not to be allowed to recover. 
 It was held that this condition was a condition precedent. The same 
 doctrine was applied by that Court to the condition in a policy of insur- 
 ance against fire, that the party should obtain a certiiicate from the 
 rector of his parish, and a certain number of the inhabitants, before 
 entitling liimself to payment of liis claim for loss ; Worsley v. Wood.^ 
 If this is a condition pi-ecedent, then it must be exactly performed, and 
 nothing can be substituted for it. In this respect there is a difference 
 between a condition precedent and a condition subsequent. The former 
 must be performed before an estate can vest ; while the performance 
 of the latter, which is intended to defeat an existing estate, may be 
 dispensed with. The act of God, the king's enemies, or the impossibility 
 of performance, will furnish an excuse as to a condition subsequent. 
 This is a settled principle of our law, and the case of Brodie v. Todd^ 
 shows that the law of Scotland recognizes the same rule. In that 
 case, Arnot, a merchant of Leith, agreed to purchase from Todd & Co. 
 of Hull, goods which were to be paid for by his acceptance. They 
 put the goods on board a vessel at Hull ; enclosed a bill of lading 
 and a draft for the price in a letter, ad\'ising Arnot of the shipment, 
 and requesting him to return tlie draft accepted "in course." This 
 letter was received by Arnot on tlie morning of the 24th of April, and 
 if answered by him by return of post, the answer might have been 
 received by Todd & Co. on the morning of the 26th. Arnot, however, 
 did not answer it till that day, when he sent back the draft accepted. 
 In the coui'se of the 26th, Todd k Co., not having received the draft as 
 expected, re-landed the goods. Arnot brought an action ; and the 
 question was, whether the request to return " in course," meant a return 
 by the earliest post, and constituted a condition precedent. The Lords 
 held that the words meant by return of post, and did constitute a con- 
 dition precedent, and consequently that no action was maintainable by 
 Arnot, since he had not complied with the condition on which the bargain 
 was made. That case is completely decisive as to what is the doctrine 
 of the Scotch law, and must govern the decision here. 
 
 [The Lord Chancellor. Is it not a question of fact, whether the 
 posting of the letter, in this case, on the 30th of January, was not a 
 compliance with the duty of the party 1 Here is no distinct stipula- 
 tion, — it is all matter of inference. The question is, whether putting 
 in the post is not a virtual acceptance, though by the accident of the 
 post it does not arrive. In the case quoted, one whole day was allowed 
 
 1 3 Douglas, 28. = 6 Term Eep. 710. » 17 Fac. Col. Deo. 20, May, 1814.
 
 CHAP. l] DUNLOP V. HIGGINS. 123 
 
 to intervene. But in this case, if putting the letter in the post is a 
 compliance with the condition, there is an end of the question.] 
 
 That would be so, if it was a condition subsequent, for then somo- 
 tliing could be substituted for actual performance. But this is a con- 
 dition precedent, and must be literally performed. 
 
 In considering this question Lord Jeffrey observed, " The party 
 here only says, 'If I do not iiear by return of post.' I have yet to 
 learn that the return of post is like the return of tlie sun to the 
 meridian at a particular time. I do not think that the use of such a 
 phrase is equivalent to the stipulation of a particular time. I am inclined 
 to hold that the return of post means the actual return of the post. And 
 the species facti here was, the letter accepting the offer having been 
 sent in due time to the post-office, that it did [not 1] come to hand at the 
 hour at which, accordmg to the usual time required for its transmission, 
 it should have come. But the actual course of that post was not 
 till the morning of the 1st February." And the learned Judge justifies 
 his doctrine by referring to the case of tlie post coming by sea, where 
 a general average time is fixed, but where return of post is not calcu- 
 lated by that average, but by the actual arrival of the post, and then 
 he supposes a universal snow-storm affecting the delivery by land, and 
 argues that if matter of that general notoriety would affect the question, 
 so does any other accident to the post although not so generally known. 
 But surely this is giving an entirely new interpretation to mercantile 
 contracts, and is making accidental cii'cumstances or natural delays, 
 always counted upon, furnish ground for the construction of a delay 
 occasioned by an accident which neither party anticipated. Besides, 
 it is clear on the facts here, that had the letter been put into the early 
 post of the 30th January, this accident would not have befallen it ; so 
 that the accidental delay in the post-office was really the consequence 
 of the delay in posting the letter, and was so far attributable to the 
 respondents. 
 
 They cannot, therefore, claim any advantage from their acceptance 
 of the contract, which acceptance they did not notify, nor condemn the 
 other parties for non-performance of a contract, the acceptance of which 
 they did not know. It is the acceptance wliich completes the contract. 
 The agreement is not suspended till the offerer has actually received 
 notice of the acceptance, but only until lie miglit have received notice, 
 had that notice been forwarded at the earliest moment. This is the 
 rule declared in Bell's Principles of the Law of Scotland', and this rule 
 must be applied to, and must govern the decision of the present case. 
 
 Mr. Stuart Wortletj and Mr. Uwjh lliU, for the respondents, were 
 not called on. 
 
 J Page .35, § 7«.
 
 124 DUNLOP V. HIGGINS. [CHAP. I 
 
 The Lord Chancellor. My Lords, every thing which learning or 
 ingenuity can suggest on tlie part of the appellants, has undoubtedly 
 been suggested on the part of the learned counsel who have just ad- 
 dressed the House ; and if your Lordships concur in my view, that 
 they liave failed in making out their case, you will have the satisfaction 
 of kno-n-ing that you liave come to that conclusion after having liad 
 every thing suggested to you that by possibility could be advanced in 
 favor of this appeal. 
 
 The case certainly appears to me one which requires great ingenuity 
 on the part of the appellants, because I do not think that, in the facts 
 of the case, there is any thing to warrant the appeal. The contest 
 arises from an order sent from Liverpool to Glasgow, or rather a propo- 
 sition sent from Glasgow to Liverpool, and accepted by the house at 
 Liverpool. It is unnecessary to go earlier into the history of the case 
 than the letter sent from Liverpool by Higgins, bearing date the 31st 
 of January. A proposition had been made by the Glasgow house of 
 Dunlop, Wilson, & Co., to sell 2000 tons of pig-iron. The answer is of 
 that date of the 31st of January: "Gentlemen, we will take the 2000 
 tons, pigs, you offer us." Another part of the letter refers to other 
 arrangements ; but there is a distinct and positive offer to take the 2000 
 tons of pigs. To that letter there is annexed a postscript in which 
 they say, " We have accepted your offer unconditionally ; but we liope 
 you will accede to our request as to delivery and mode of payment by 
 two months' bill." 
 
 That, my Lords, therefore, is an unconditional acceptance, by the 
 letter dated the 31st of January, whicli was proved to have been put 
 into the post-office at Liverpool on the 30th ; but it was not delivered, 
 owing to the state of severe frost at that time, which delayed the mail 
 from reaching Glasgow at the time at which, in the ordinaiy course, it 
 would have arrived there. The letter having been put in on the 30th 
 of January, it ought to have arrived at Glasgow on the following day, 
 but it did not arrive till the 1st of February. 
 
 It appears that between the time of writing the offer and the 1st of 
 February, the parties making the offer had changed their minds ; and 
 instead of being willing to sell 2000 tons of pig-iron on the terms pro- 
 posed, they were anxious to be relieved from that stipulation ; and on 
 that day, the 1st of February, they say, "We have yours of yesterday, 
 but are sorry that we cannot enter the 2000 tons of pig iron, our offer 
 of the 28th not having been accepted in course." 
 
 Under these circumstances, the parties wishing to buy, and by their 
 letter accepting the offer, instituted proceedings in the Court of Ses- 
 sions for damages sustained by the non-performance of the conti'act. 
 And the first question raised by the first exception, applies not to the 
 summing up of the learned Judge, but to the admission of evidence 
 V)y him ; for connected with that admission of e\idence is the first
 
 CHAP. l] DUNLOP V. HIGGINS. 125 
 
 exception. I need hardly say but little on this point, but as it formed 
 part of the proceedings on which the judgment must ultimately be 
 pronounced, I will very shortly call your Lordships' attention to tiin 
 proposition presented for your decision by that first exception. 
 
 My Lords, the exception states, "that the pursuers having admitted 
 that they were bound to answer the defenders' offer of the 28th, by 
 letter written and posted on the 30th, and the only answer received 
 liy the defenders being admitted to be dated on the 31st of January, 
 and received in Glasgow by the mail which in due course ought to 
 bring the Liverpool letters of the 31st, but not Liverpool letters of the 
 30th, it is not competent in a question as to the right of the defenders 
 to withdraw or fall from the ofTer, to prove that the letter bearing 
 date the 31st of January was written and despatched from Liverpool 
 on the 30th, and prevented by accident from reaching Glasgow in 
 due course, especially as it is not alleged that the defenders were 
 aware (previous to the 3d of February) of any such accident having 
 occurred." 
 
 The counsel for the pursuer answered that nothing had been stated, 
 but that the pursuers were bound instantly to answer the defenders' 
 ofler of the 28th of January, and that, according to the practice of mer- 
 chants, it was sufficient if that letter was answered on that day on 
 which it was received. 
 
 The Lord Justice General did overrule the objection, and admitted 
 the evidence. 
 
 The exception is that the learned Judge was wrong in permitting the 
 pursuer to explain his mistake. The proposition is, that if a man is 
 l)ound to answer a letter on a particular day, and by mistake puts a 
 date in advance, he is to be bound by his error, whether it produces 
 mischief to the other party or not. It is unnecessary to do more than 
 state this proposition in order to induce you to assent to the view I 
 take of the objection, and to come to the conclusion that the learned 
 Judge was right in allowing the pursuer to go into evidence to show 
 the mistake. 
 
 I pass on then to the fourth exception which is connected with this 
 point, and which states that his Lordship did not direct the jury in point 
 of law, that, in the case above supposed, if an answer arrives, bearing 
 a date beyond the time limited as above for making answer, and arrives 
 by a mail, and is delivered at a time corresponding to such date, the 
 offerer is entitled to consider himself free to deal with the goods as his 
 own, either to sell or to hold, if he was not in the knowledge that the 
 answer received was duly written at an earlier date, and delayed in its 
 arrival by accident ; that is to say, that if a letter bears a date which, 
 on the face of it, shows that it was written erroneously, nevertheless 
 the party is bound by the date so written on the face of the letter, and 
 you cannot go into the circumstances tfl explain how it happened that
 
 126 DUNLOP V. HIGGINS. [CHAP. I 
 
 the letter did not arrive in time, but that you are bound to assume that 
 it arrived on the day mentioned, and the party cannot give any evidence 
 in explanation. 
 
 My Lords, that falls with the other exception, and the two togetlier 
 go for nothing. I merely state it for the purpose of asking your Lord- 
 ships to concur in the opinion that I have formed — that the learned 
 Judge was correct in the mode in which he left the question to the jury, 
 and consequently that on that point the bill of exceptions cannot be 
 supported. 
 
 The next exception to he considered is the second, and that raises a 
 more important question, though not one attended with much difficulty. 
 The exception is, that his Lordship did direct the jury in point of law, that 
 if the pursuers posted their acceptance of the offer in due time, according 
 to the usage of trade, they are not responsible for any casualties in the 
 Post Office establishment. 
 
 Now, there may be some little ambiguity in the construction of that 
 proposition. It proceeds on the assumj)tion that, Ijy the usage of trade, 
 an answer ought to have been returned by the post, and that the 30th 
 was the right day on which that answer ought to have been notified. 
 Then comes the question, whether, under those circumstances, that being 
 the usage of trade, the fact of the letter being delayed, not by the act of 
 the party sending it, but by an accident connected with the post, the 
 party so putting the letter in on the right day is to lose the benefit which 
 would have belonged to him if the letter had arrived in due course f 
 
 I cannot conceive, if that is the right construction of the direction of 
 the learned Judge, how any doubt can exist on the point. If a party 
 does all that he can do, tliat is all that is called for. If there is a usase 
 of trade to accept such an offer, and to return an answer to such an offer, 
 and to forward it by means of the post, and if the party accepting the 
 offer puts his letter into the post on the correct day, has he not done 
 everything he was bound to do 1 How can he be responsible for that over 
 which he has no control 1 It is not the same as if the date of the party's 
 acceptance of the offer had been the subject of a special contract : as if 
 the contract had been, " I make you this offer, but you must return me an 
 answer on the 30th, and on the earliest post of that day." The usage of 
 trade would require an answer on the day on wliich the offer was received, 
 and Messrs. Higgins, therefore, did on tlie 30th, in proper time, return an 
 answer by the right conveyance — the Post Office. 
 
 If that was not correct, and if you were to have reference now to any 
 usage constituting the contract between the parties a specific contract, it 
 is quite clear to me that the rule of law would necessarily be that wluch 
 has obtained by the usage of trade. It has been so decided in cases in 
 England, and none has been cited from Scotland wliich controverts that 
 proposition ; but the cases in England put it beyond all doubt. It is not 
 disputed — it is a very freciuent occurrence, that a party having a bill of
 
 CHAP. l] DUNLOP V. HIGGINS. 127 
 
 exchange, which he tenders for payment to the acceptor, and pa)'nicnt is 
 refused, is bound to give the earliest notice to tlie di-awer. That person 
 may be resident many miles distant from him ; if he puts a letter into the 
 post at the right time, it Jias been held quite sufficient ; he has done all 
 that he is expected to do as far as he is concerned ; he has put the letter 
 into the post, and wliether that letter be delivered, or not, is a matter 
 quite immaterial, because, for accidents happening at the Post Office he is 
 not responsible. 
 
 My Lords, the case of Siocken v. Collin'^ is precisely a case of that 
 nature, where the letter did not arrive in time. In that case Baron 
 Parke says, "It was a question for the jury whether the letter was put 
 into the post-office in time for delivery on the 2Sth. The post-office 
 mark certainly raised a presumption to the contrary, but it was not 
 conclusive. The jurors have believed the testimony of the witness who 
 posted the letter, and the verdict was therefore right. If a party puts 
 a notice of dishonour into the post, so that in due course of delivery it 
 would arrive in time, he has done all that can be required of him, and 
 it is no fault of his if delay occurs in the delivery." Baron Alderson 
 says, " The party who sends the notice is not answerable for the blunder 
 of the post-office. I remember to have held so in a case on the Norfolk 
 Circuit, where a notice addressed to Norwich had been sent to Warwick. 
 If the doctrine that the post-office is only the agent for the delivery of 
 the notice, was correct, no one could safely avail himself of that mode 
 of transmission. The real question is whether the party has been 
 guUty of laches." 
 
 There is also the other case which has been referred to, which declares 
 the same doctrine, the case of Adams v. Lindsell". That is a case 
 where the letter went, by the error of the paity sending it, to the 
 wrong place, but the party receiving it answered it, so far as he was 
 concerned, in proper time. The party, however, who originally sent 
 the offer not receiving the answer in proper time, thought he was dis- 
 charged, and entered into a contract and sold the goods to somebody 
 else. The question was, whether the party making the offer had a 
 right to withdraw after notice of acceptance. He sold the goods after 
 the party had written the letter of acceptance, but before it arrived he 
 said, "I withdraw my offer." Therefore he said, "before I received 
 your acceptance of my offer I had withdrawn it." And that raised the 
 question when the acceptance took place, and what constituted the 
 acceptance. It was argued, that "till the plaintiS"s answer was actu- 
 ally received, there could be no binding contract between the parties, 
 and that before then the defendants had rcti-acted tlieir oifer by selling 
 the wool to other persons." But the Court said, "If that were so, no 
 contract could ever be completed by the post, for if the defendants 
 were not bound by their offer when accepted by the plaintiffs till the 
 » 7 Meeson & Welsby, 515. = 1 Baraewall cSr Alderson, 681.
 
 128 DUNLOP V. HIGGINS. [cHAP. r 
 
 answer was received, then the plaintifis ouglit not to be bound till after 
 they had reeeived the notification that the defendants had received 
 their answer and assented to it. And so it might go on ad infinitrtm. 
 
 The defendants must be considered in law as making, during every 
 instant of tlie time their letter was travelling, the same identical offer 
 to the plaintifis, and then the contract is completed by the acceptance of 
 it by the latter." 
 
 Those two cases leave no doubt at all on the subject. Common sense 
 tells us that transactions cannot go on without such a rule, and these 
 cases seem to be the leading cases on the subject, and we liave heard 
 no authority cited which in the least degree aflects the principle on 
 which they proceed. The law of Scotland appears to be the same as 
 the law of England, for Mr Bell's Commentary lays down the same 
 rule as existing in Scotland, and nothing has been stated to us in con- 
 tradiction of his opinion. 
 
 Now whether I take that proposition as conclusive upon the objec- 
 tion, or whether I consider it as a question entirely open, whether the 
 putting the letter into the post was, or not, in time to constitute a 
 valid acceptance, it appears to me that the learned Judge was right in 
 the conclusion to which he came, that he was riglit in the mode in 
 which he left the question to the jury, and that he was not bound to 
 lay down the law in the manner alleged in the bill of exceptions. 
 
 The next exception is the third, which says, "In so far as his Lord- 
 ship did not direct the jury in point of law, that if a merchant makes 
 an ofier to a party at a distance, by post letter, requiring to be answered 
 within a certain time, and no answer arrives within such time as it 
 should arrive, if the party had written and posted his letter within 
 the time allowed, the otterer is free, tliough the answer may have 
 actually been written and posted in due time, if he is not proved to be 
 aware of accidental circumstances preventing the due arrival of the 
 answer." 
 
 That, my Lords, raises first of all a proposition that does not arise 
 in this case at all. It assumes a contract tjiat requires an answer within 
 a certain stipulated time, and it assumes (which is already disposed 
 of by what I have said in answer to the second exception) that the 
 putting a letter into the post is not a compliance with the requisition of 
 the ofier. But there is no special contract here, and therefore this 
 exception cannot be maintained. 
 
 I believe that in these remarks I have exhausted the whole of the 
 objections made ; and my advice to your Lordships is to aflirm the 
 judgment of the Court from which this is appealed. 
 
 It tvas ordered that the interlocutor complained of should be affirmed, 
 with costs.
 
 CHAP, l] COUNTESS OF DUNMORE i<. ALEXANDER. 12!) 
 
 COUNTESS OF DUNMORE AND HUSBAND, Advocators. 
 ELIZABETH ALEXANDER, Respondent. 
 
 Court op Session in Scotland, December L'), 1830. 
 
 [Eejmrted in 9 Shaw and Duidop, 190.] 
 
 The Couiites.s of Dunmore, being aliout to change a servant, and 
 having heard that Elizabeth Alexander was to leave tlie service of 
 Lady Agnew of Loclmaw, wrote to lier ladysliip, mentioning tlie cir- 
 cumstance; stating that the wages she gave were £12. 12s. per annum, 
 and requesting to be informed as to Alexander's character. Lady 
 Agnew, in answer, stated that she could recommend Alexander, wlio 
 would gratefully accept the proposed wages ; and her ladyship added 
 as follows : " If Lady Dunmore decides upon taking Betty Alexander, 
 perhaps she will have the goodness to mention wliether she expects 
 her at the new or the old term." On the 5th of November, tlie Countess 
 wrote to Lady Agnew, requesting that she would " have the goodness 
 to engage Betty Alexander for her at the £12. 12s. a year, but she 
 wishes to have her at the new term, or as soon after as possible, because 
 her present one must go at that time." The letter went through the 
 post-office to Lochnaw ; but as Lady Agnew had gone to Glasserton- 
 liouse, it was sent to lier there. Upon receiving it, Lady Agnew desired 
 her housekeeper, Mrs. Moore (who had accompanied her), to notify tlic 
 Countess's answer to Alexander, wliich was done by Moore making an 
 addition on the letter itself and putting it into the post-office, addressed 
 to Betty Alexander at Loclmaw. In the mean while, on tlie 6tli of 
 November (the day after writing the above letter), the Countess 
 addressed another letter to Lady Agnew, intimating that she no longer 
 needed Alexander. This second letter, which was also addressed to 
 Lochnaw, was sent to Lady Agnew at Glasserton-liouse, and was received 
 immediately after tlie other had been despatclied to the post-office ; but 
 Lady Agnew sent the second one by express to the post-office, and 
 both the letters arrived at Lochnaw together, and were delivered at 
 the same moment to Alexander. Lady Dunmore having declined to 
 receive her, or pay her wages, Alexander raised an action against her 
 in June, 1827, before the Slieriff of Stirlingshire, for wages and board- 
 wages for six months, from Martinmas, 1826, to Whit-Sunday, 1827, at 
 which time she had got a new situation. 
 
 In support of this demand, she maintained that there liad been a com- 
 pleted contract, and that Lady Dunmore was not entitled to resile. 
 On tlie other hand, her Ladyship contended, that as the two letters liad 
 been received by Alexander at one and the same time, she was made 
 aware that her services would not be required, and therefore she could 
 not allege a concluded contract. 
 
 The Sheriff Substitute, after finding the above facts, pronounced an 
 interlocutor in tliese terms : " Finds th.it Ladv Agncw's card, fornici-Iy 
 F. ' ^ !J
 
 130 COUNTESS OF DUNMORE V. ALEXANDER. [CHAP. I 
 
 referred to, cannot from its tenns bo interpreted or considered otlier- 
 wise than as an ofi'er, on the part of the pursuer, to engage as a ser- 
 vant witli tlie noble defender on the terms proposed in a communica- 
 tion, to which tliis card is obviously an answer ; — finds it doubtful 
 whetiier tlie noble defender's reply to Lady Agnew, contained in the 
 card libelled on, uncommunicated in any way to the pursuer, can be 
 held to be a legal acceptance of the offer ; — but finds it very clear, 
 abstractedly from the specialties of the present case, that the said 
 card, communicated, in the manner it has been done, to the pursuer by 
 Lady Agnew through Mrs. Moore, must be held to be a legal acceptance 
 of the offer, an actual engagement of the pursuer, and a completion 
 of the contract, from which neither party was entitled to resile ; — 
 therefore finds that the issue of this case depends on the solution of 
 the question, whether a party who accepts of an offer is entitled at the 
 same moment, unico contextu, or with the same breath, to retract his 
 acceptance. And the Sheriff Substitute being of opinion that the 
 instant an offer is accepted of the contract is completed, it is not in 
 the power of either party to retract or resile ; — that from the moment 
 of acceptance, as expressed by Mr. Bell in treating of the contract of 
 sale, there is between the parties in idem placituni concursus et con- 
 ventio, which constitutes the contract ; — finds that, as in the present 
 instance the contract was completed by the transmission of the card 
 libelled on to the pursuer, the engagement between the parties was 
 rendered indissoluble without the consent of both, and that it was con- 
 sequently beyond the power of the noble defender at any time, how- 
 ever short the interval, to retract the acceptance, or resile from the 
 engagement ; — on these grounds repels the defences, and decerns against 
 the noble defenders in terms of the conclusion of the libel." 
 
 The Sheiiff Depute having adhered, the Countess advocated ; and 
 the Lord Ordinary, having ordered cases, " advocated the cause, approved 
 of the findings in point of fact in the Sheriff's interlocutor ; but altered 
 the judgment of the Sheriff, sustained the defences, assoilzied the ad- 
 vocators," and found no expenses due.' 
 
 Alexander reclaimed. 
 
 ' The Sheriff, in his interlocutor of 15 February, 1828, has stated the facts cor- 
 rectly, but bis judgment seems inconsistent with the facts he has found. He puts bis 
 opinion on the ground that the contract was only completed by the communication 
 to the pursuer of Mrs. Moore's letters; yet be conceives there was some interval 
 betwixt her knowledge of the consent and of the recall which rendered the latter 
 ineffectual. But as the letters were delivered to the pursuer by the same person and 
 at the same moment, while it is impossible to know which was first read, they must 
 be held as one communication, and the notification of recall being simultaneous with 
 that of the consent must do it away altogether. 
 
 The pursuer in this court has not attempted to support the Sheriff's %'iew. But 
 assuming that the Lady Agnew's letter of the 2d of November contained an offer on 
 the part of the pm-suer, and that Lady Dunmore's letter of the .5th was an acceptance 
 of that offer, she contends that the contract was completed, so as to bar resiling, 
 
 I
 
 CHAP, l] COUNTESS OF DUN>r()l!E V. AI.EXANDEU. 131 
 
 Lord Baloray. Tlio ailiuissidii tliat tlic two k'ttors Wfvc siinul- 
 
 eitlier by the wi-iting or putting that letter into the post-office, or at least by its Iwing 
 received by Lady Agnew. 
 
 The Lord Ordinary thinks it doubtfrtl if the letter of the 2d can be held as an 
 oflfer made on the pursuer's part, or any thing but an answer to Lady Dunmore's in- 
 quiries. But at any I'ate it seems clear, from the terms of her letter of the Sth, that 
 Lady Dunmore did not understand it as such, and that she did not mean her letter as 
 an acceptance communicated to Lady Agnew, as acting for the pursuer. The letter 
 plainly gives a commission to Lady Agnew to act as the writer's mandatory in en- 
 gaging the pursuer, conceiving that the contract was still to be made. Now, having 
 given such a commission, it was in the power of Lady Dunmore to give contrary in- 
 structions to her mandatory ; and if these were received in such time that the manda- 
 tory was able to recall any step that she had taken before the contract was completed, 
 no obligation could be incurred. 
 
 Even if the letter of the .5th could be viewed as an acceptance, it seems impossible 
 to hold that it was sent to Lady Agnew as mandatory of the pursuer, so that the 
 receipt of it by her completed the bargain. The writer plainly constitutes Lady 
 Agnew as her mandatoi-y in what was to be done, although it may be possible to hold 
 that, by " engaging the pursuer," she meant that she should communicate to her the 
 acceptance contained in her letter ; and this communication was therefore necessary 
 to perfect the location. 
 
 But the pursuer, on the authority of a passage in Mr. Bell's work, maintains that it 
 is not necessary, in order to complete a consensual contract, that the acceptance should 
 be communicated to the offerer, because the offerer having previously consented, the 
 mere consent of the person, to whom the offer is made constitutes the conserisus in 
 idem 2'luetltim, which is all that is requisite to perfect his engagement. But if the 
 learned author's meaning is to be taken in the extensive sense here contended for, so 
 as to bar the acceptor from resiling, it does not seem to be supported by sufficient 
 authority. From the reason assigned, the mere existence of a consent m the ac- 
 ceptor's mind would have the effect to bind him, — a thing which might admit of 
 being proved by a reference to oath. The pursuer indeed disclaims going tins length, 
 and contents herself with maintaining that any clear expression of the consent will 
 be sufficient. 
 
 But surely the expression of consent made to a third person altogether unconnected 
 with the offerer will not do, nor will the writing of a letter of acceptance be sufficient, 
 if tliis letter is never sent. The Lord Ordinary conceives that if, after writing such 
 a letter, the author should add a postscript, stating, that on further consideration, or 
 in consequence of new mtelligence, he did not choose to accept the offer, and if, from 
 the letter's referring to other matters, he still thought it necessary to send it, the ac- 
 ceptance would be effectually recalled. But if this be the case, the same effect must 
 follow when a second letter retracting the offer is transmitted by the same post, so 
 as to be received at the same time, or where a communication to this effect is made 
 by express or otherwise to the offerer before the acceptance reaches him. In short, 
 each party may resile, so long as his offer or acceptance has not been communicated to 
 the other party. 
 
 The pursuer may have suffered from the disappointment of her expectations ; but 
 the same hardship would have been felt, had Lady Dunmore written no letter but 
 the last, in which case, however, the pursuer could have had no claim. The different 
 ranks of the parties, and the gi-eat miportance of the sum claimed to the one in com- 
 parison with the other, leads naturally to the giving all possible weight to the pur- 
 suer's argument. But any plea of favor of this kind is in great measure done away 
 by the very discreditable account which she has given as to her receipt of the letters, 
 particularly in her deposition when examined as a haver in the Inferior Court. 
 
 9—2
 
 1.32 COUNTESS OF DUNMORE V. ALEXANDER. [CHAP. I 
 
 taneously received puts an end to the case. Had the one arrived in 
 the morning, and the other in the evening of the same day, it would 
 have been different. Lady Dunmore conveys a request to Lady Agnew 
 . to engage Alexander, which request she recalls by a subsequent letter, 
 that arrives in time to be forwarded to Alexander as soon as the first. 
 This, therefore, is just the same as if a man had put an order into the 
 post-office, desiring his agent to buy stock for him. He afterwards changes 
 his mind, but cannot recover his letter from the post-office. He therefore 
 writes a second letter countermanding tiie first. They both arrive together, 
 and the result is, that no purchase can be made to bind the principal. 
 
 Lord Craigie. I take a different view. Lady Agnew, acting for 
 the servant, writes to Lady Dunmore, stating Alexander's readiness to 
 accept the proposed wages, recommending her on account of her character, 
 and concluding thus : " If Lady Dunmore decides on taking Betty 
 Alexander, perhaps she will have the goodness to mention whether she 
 expects her at the new or old term." Now, what is the answer of the 
 Countess ? A request to Lady Agnew to engage the servant at the wages 
 mentioned, accompanied with a notice that " she wishes to have her at the 
 new term," &c. Lady Agnew was thus the mandatory for both parties, 
 the mistress and the servant ; she was on the same footing as a person in 
 tlie well-known situation of broker for both buyer and seller. Every 
 letter between the principals, relative to an offer or an acceptance 
 respectively, was, as soon as it reached Lady Agnew, the same as 
 delivered for behoof of the party on whose account it was written. I 
 hold, therefore, that when Lady Dunmore's letter reached Lady Agnew, 
 the contract of hiring Alexander was complete, — the offer on the part of 
 Alexander being met by an intimated acceptance on the part of tlie 
 Countess. No subsequent letter from tlie Countess to Lady Agnew could 
 annul what had passed by the mere circumstance of its being delivered, at 
 the same time with the first, into the hands of Alexander. I do not think 
 the servant could have retracted after the first letter reached Lady Agnew ; 
 and if she was bound, it seems clear that the Countess could not be free. 
 
 Lord Gillies. I am decidedly of the opinion first expressed. Lady 
 Agnew received a letter desiring her to engage a servant for Lady 
 Dunmore. She proceeds to take steps towards this by putting a letter in- 
 to the post-office for the purpose of making the engagement. But, before 
 this letter reaches its destination, her authority to hire the servant is 
 recalled ; and, by the help of an express, she forwards the recall, so that 
 it is eventually delivered through the same post with the former letter, 
 and both reach the servant at once. They thus neutralize each other, 
 precisely as in the case put by Lord Balgray, of an order and a counter- 
 mand being sent through one post to an agent. I am therefore for 
 adhering. 
 
 Lord President. I concur with the majority. There was no com- 
 pleted contract here, and Lady Dunmoi'e was at liberty to resile as slie did.
 
 CHAP, i] II ebb's case. 133 
 
 I.V HE NATIONAL SAVINGS BANK ASSOCIATION. 
 
 HEBBS CASE. 
 
 In Chanckry, May 1, 1867. 
 
 [Rejiortcd in Law Ri'iiorts 4 F.quily, 9.] 
 
 This was an application by Henry Kirke Helib, tliat liis name might 
 lie removed from the list of conti'ibutories of the National Savings 
 Bank Association, a company formed under the Joint Stock Companies' 
 Act, 18.56, and now being wound up under the Companies' Act, 1862. 
 
 On the 28th of August, 18.57, Hebb signed and gave to the agent of 
 the company at Lincoln an application for ten shares in a form pro- 
 vided by the company, and at the same time paid to the agent a deposit 
 of 5s. per share, for which the agent gave liim a receipt, with a memo- 
 randum that a duly authorized receipt would be forwarded from the 
 head office within eight days. 
 
 On the 4th of September, 1857, the directors allotted ten sliarcs to 
 Hebb, and entered his name in the allotment book, and on the same 
 day sent to their agent at Lincoln the letter of allotment with a receipt 
 for the deposit signed by two directors, but the agent did not deliver 
 the letter and receipt to Hebb until the 9th of September. In the 
 mean time, on the 8th of September, Hebb wrote a letter to the 
 directors, withdrawing his application, and requesting the return of 
 the deposit. 
 
 On the 26th of August, 1858, Hebb having insisted upon repudiating 
 the allotment, and thi-eatened to sue the company for the deposit, the 
 directors paid him the deposit. The allotment was not formally can- 
 celled, and Hebb's name remained on the register of shareholders, but 
 he had no further communication from the comjiany until June, 1866, 
 when the company was ordered to be wound up. 
 
 Mr De Gex, Q.C., for the applicant. 
 
 First. The applicant never became a shareholder within the meaning 
 of the Joint Stock Companies' Act, 1856, § 19, inasmuch as he never 
 accepted any shares, having withdrawn his application before its accept- 
 ance by the directors was communicated to him. A contract is not 
 binding until the party who has made the proposal lias received from 
 the other party notice that the latter has accepted it. Routledije v. 
 Grants So long as the letter of allotment remained in the hands of 
 their agent the company might have cancelled the allotment, and the 
 applicant could not have compelled them to gi\e him the shares, and, 
 on the other hand, he was entitled to withdraw his application. 
 
 1 1 Bill". r>8H.
 
 134 IIEBIJ'S CASE. [chap. I 
 
 [Mr Roxhuryh, Q.C., amicus curia: In Pellatt's Case', althougli 
 tliei'c was no decision upon the point, the Lords Justices expressed an 
 opinion, that notice of allotment was necessary to complete the con- 
 tract, and that in Dloxam's Case^ the decision must have been founded 
 on the assumption that Bloxliam knew of tlie allotment, though he had 
 no formal notice.] 
 
 Secondly. If there was a binding contract, it was annulled when the 
 deposit was returned, and it has been so treated by both parties ever 
 since. It was competent to the company to amiul it, and the directors 
 could exercise tliis power on behalf of the company. £x parte Beres- 
 ford^; Jix parte Miles*. Where there is a bona Jide dispute as to the 
 validity of a contract to take shares, the directors may compromise it, 
 or release the alleged shareholder from the contract. Lord Belhaven's 
 Case^ And even if the directors had no such power, the consent of 
 the shareholders would be presumed after the lapse of so many years. 
 Hrotherhood's Case". 
 
 Mr IktgrjuUaij, Q.C., and Mr J. Napier Higgins, for the official 
 liquidator. 
 
 First. The contract was complete as soon as the shares were allotted. 
 The directors could not, either as against the applicant, or as against 
 the other shareholders, have recalled the allotment, whether or not it 
 liad been notified to the applicant, and the applicant might at any time 
 after the 4th of September, 1857, have enforced specific performance. 
 It has never been decided that notice of acceptance is necessary to 
 complete a contract. In Eoidledge v. Grant' there was no acceptance 
 of the offer; in Ex jmrte Miles", before any allotment was made, both 
 parties agreed to vary the contract; in Pellatt's Case" there was no 
 decision on this point. In Dunlop v. Jliggins'° it was held that a con- 
 tract was complete as soon as a letter was posted accepting the offer. 
 [They also referred to C'hitty on Contracts.]" 
 
 Secondly. If tlic contract was binding, the applicant, having become 
 a shareholder, could only be released by the consent of every share- 
 liolder. Spackman's Case'"; Stanhope's Case'^ In Lord Belhaven's 
 Case" the deed of settlement expressly empowered the directors to 
 compromise suits, and Lord Belhaven paid a sum of money to be 
 released from the alleged contract; here there was no such power, and 
 in fact there was no compromise. 
 
 Lord Romilly, M.R. I think that Mr Hebb is not a contributory 
 
 1 Law Eep. 2 Ch. 527. - 33 L. J. (Ch.) 519, 57i. 
 
 ^ 2 Mac. & G. 197. 4 34 L. J. (Cb.) 123. 
 
 ■* 3 D. J. & S. 41. 6 31 Beav. 365; on appeal, 8 Jur. (n. s.) 926. 
 
 ' 4 Bing. 053. 8 34 L. J. (Cb.) 123. 
 
 » Law Kep. 2 Cb. 527. i" 1 H. L. C. 881. 
 
 " Pages 9 et sef/. (1th edit.). ^"- 11 Jur. (s. s.) 207. 
 
 " Lciw Pvcp. 1 Cli. 101. n 3 D. J. * S. 41.
 
 CHAP, i] hebb's case. 135 
 
 of this company. The mere writing of a line iii a book is not, in my 
 opinion, an irrevocable act ; and if a person applies for shares in a 
 company, and the directors write down his name in the allotment book, 
 they may at any time before the allotment has been communicated to 
 the allottee alter or cancel the allotment ; if it were not so, a mere 
 accident migjit irrevocably bind the company. 
 
 These applications for and allotments of shares must be treated upon 
 the same principles as ordinary contracts between individuals. If 
 A. writes to B. a letter ofi'ering to buy land of B. for a certain sum of 
 money, and B. accepts the offer, and sends his servant with a letter 
 containing his acceptance, I apprehend tliat until A. receives the letter, 
 A. may withdraw his offer, and B. may stop his servant on the road 
 and alter tlie terms of his acceptance, or withdraw it altogether ; he is not 
 bound by communicating the acceptance to his own agent. Dunlo]} v. 
 Hiijgiiis^ decides that the posting of a letter accepting an offer consti- 
 tutes a binding contract, but the reason of that is, that the post-office is 
 the common agent of both parties. In the present case, if Mr Hebb 
 liad authorized the agent of the company to accept the allotment on his 
 behalf there would have been a binding contract, but he gave no such 
 authority, and, as he had withdrawn his original offer before he received 
 the letter of the directors, the position of the parties was changed, and 
 that letter became an offer which required the accej^tance of Mr Hebb 
 to constitute a binding contract. 
 
 In Martin v. Mitchell' Sir T. Plumer says, " When one pai-ty, hav-ing 
 entered into a contract that has not been signed by the other, after- 
 wards rejjents, and refuses to proceed in it, I should have felt great 
 difficulty in saying that he had not a locus pmnitentice, and was not at 
 liberty to recede until the other had signed, or in some manner made it 
 binding upon himself. How can the contract be complete before it is 
 mutuaU And can it be complete as to the one, and not as to the 
 other V I am of opinion that an offer does not bind the person who 
 makes it until it has been accepted, and its acceptance has been com- 
 municated to him or his agent. Consequently, in my opinion, Mr Hebb 
 never became a shareholder ; but if he had once become a shareholder, 
 I should have felt a difficulty in holding that he had been released from 
 that position by the subsequent return of the deposit. His name must 
 be removed from the list of contributories, and both he and the official 
 liquidator must have their costs out of the estate. 
 
 1 1 H. L. C. 381. - 2 Jac. & W. 413, 428.
 
 136 HARRIS' CASE. [CHAP. I 
 
 IN RE IMPERIAL LAND COMPANY OF MARSEILLES. 
 HARRIS' CASE. 
 
 In Chancery, May 3, 24, 1872. 
 
 [Jieimrteil in Law Reports, 7 Chancery Appeals, 587.] 
 
 In February, 18GG, the prospectus of a company in Lmidon, called 
 the Imperial Land Comjyany of Marseilles, Limited, was published, 
 requiring applicants for shares to pay £1 per share on application and 
 .£4 on allotment and stating that interest at the rate of 10 per cent, 
 per annum would during the construction of the works be paid to the 
 shareholders. 
 
 Mr. Leivis Harris of Duhlin, filled up a letter of application for shares 
 as follows : — 
 
 " To the Directors of the Imperial Land Company of Marseilles, 
 Limited. 
 " Gentlemen, — having paid to your credit with the National Bank 
 tlie sum of 200?., being the deposit of \l. per share on 200 shares in the 
 above company, I request that you will allot me 200 shares of 20^. each 
 in the Imperial Land Company of Marseilles, Limited, and I hereby 
 undertake to accept the same, or any smaller number which you may 
 allot to me, and to pay the balance, 19Z. per share, thereon ; and I agree 
 to become a member of the company, and request you to place my name 
 on the register of members, in respect of the shares allotted to me. 
 " I am, Gentlemen, 
 
 "Your obedient servant, 
 
 " Name in full : Leivis Harris. 
 
 "Address in full: 19, Suffolk Street, Dahliu. 
 
 " Profession : Bill broker. 
 
 " Usual signature : L. Harris. 
 
 "Date: 5th March, 1866." 
 
 This letter was sent by Mr. Harris to the directors through a bank, 
 and was duly received. The directors appointed a committee to allot the 
 shares, and 100 shares were allotted to Mr. Harris '. A letter from the 
 secretary of the company, containing notice of this allotment, addressed to 
 Mr. Harris at his Duhlin address, was put into the post-office at Lombard 
 Street. There was some dispute as to the exact time of posting, but the 
 letter was posted either on the 1.5th or very early in the morning of the 
 
 ^ The articles of association of the company provided for the appointment of a 
 board of dh-ectors, and contained the following clauses: — Sect. 7: "The shares shall 
 be allotted by and at the discretion of the board." Sect. 87: "The directors may 
 delegate any of their powers to committees consisting of such number of the members 
 of their body as the directors may think fit."
 
 CHAP. l] HARRIS' CASE. 137 
 
 16tli of March, 18GG, and was received by Mr. Harris at Dublin on tlie 
 17th. Tliis letter, after stating that the directors liad allotted to Mr. 
 Harris 100 shares in the company, on which a balance of 300^. was 
 payable to the bankers of the comj)any not later than the 21st of March, 
 1866, proceeded thus : — 
 
 " As the interest warrants attached to the shares bear interest from 
 the 21st of March, 1866, punctual payment of the above balance is 
 requisite. The bankers are instructed not to receive payments after tliat 
 day without charging interest at 10 per cent, per annum." 
 
 On the 1 6th of March Mr. Harris had written, and put into the post at 
 Duhlin, the following letter addressed to the directors in Lotulon, de- 
 clining to accept shares in the company : — 
 
 " Gentlemen, — On the Sth of March instant I paid to your credit into 
 tiie Natio7uil Bank, Duhlin, IQQL, being a deposit of \l. per share on 
 an application for 200 shares in the above company. I hereby give you 
 notice that, inasmuch as up to this date I have received no allotment, 
 1 hereby withdraw the aforesaid application, and request you will 
 forthwith return me my deposit of 200^., as I shall not accept any shares 
 now allotted, or hold myself in any way liable." 
 
 The secretary of the company answered on the 17th of March that 
 it was too late to withdraw the application for shares ; and Mr. Harris's name 
 was placed on the register of members as holding 100 shares. Mr. Harris, 
 however, by his solicitors continued to deny that he was a shareholder, 
 and much correspondence passed on the subject. 
 
 An order was made for winding up the company, and Mr. Harris, 
 and two other persons in a similar position, on the 23rd of July, 1869, 
 took out a summons to have their names removed from the list of 
 contributories. 
 
 The Vice-Chancellor Malins dismissed the summons ', and Mr. Harris 
 appealed. 
 
 1 1872. March 4. 
 
 Sir R. Malins, V.C, after stating the facts of the case, said, that the first serious 
 objection which had been made on behaJf on Mr. Harris was that the allotment was 
 altogether invahd as having been made by a committee, and not by the board of 
 directors ; and the 7th clause of the articles, stating that the shares were to be 
 allotted by and at the discretion of the board, was relied upon. This was a vei-y 
 serious objection, for if it prevailed the whole allotment was invaUd. But the b7th 
 clause provided for the delegation by the directors of their powers to committees. It 
 was therefore clear that the directors might so delegate the duty of aUotting shares, 
 and it was very proper that they should do so. On this point Howard's Cuse (Law 
 Eep. 1 Ch. 561) was referred to, but in that case there was no valid delegation of 
 authority, and it did not affect the jiresent case. This objection had altogether failed. 
 
 Then as to the question of acceptance, and as to wben a letter of acceptance 
 became binding. His honour then stated the facts in the case of Dunlop v. Higr/ins 
 (1 H. L. C. 3S1), and said that if it was the law that a letter was not binding until 
 it was received, then Diinlo}) cC Co. could not have been held to be bound. In Uritish
 
 138 HARRIS' CASE. [CHAP. I 
 
 Mr. Cule, Q.C., ami Mr. Everitt, for the Appellant :— 
 
 We .say tliat the contract to take shares was not binding until the 
 letter allotting them was received: British and American Teleyraph 
 Company v. Colson ' ; Townsend's Case ° ; HebVs Case I No doubt there 
 have been cases where a contract has been held complete when the letter 
 accepting an ofler has been posted ; but these were all mercantile cases, in 
 which the law is necessarily diflerent. Until the letter has reached its 
 destination, the acceptance may be retracted : Bunlop v. Biygi7i,s *. 
 
 Moreover, the letter of allotment is not a simple acceptance, but 
 introduces a condition as to interest which is a new term : Oriental 
 Inland Steam Goitqxiny v. Brigys' ; Emjlish and Foreign Credit Compani/ 
 V. Arduin ". 
 
 Another objection is, that the allotment is void as being made by 
 a committee instead of by the directors, in direct contravention of the 
 seventh clause of tlie articles. 
 
 Mr. Glasse, Q.C., and Mr. Ili'jyins, Q.C. for the liquidators, were not 
 called upon. 
 
 Sir W. M. James, L.J. : — • 
 
 I feel no doubt whatever as to the propriety of the judgment of the 
 Vice-Chancellor in this ease. 
 
 Three grounds have been taken on behalf of the Appellant. One is, that 
 upon the construction of the articles of association the allotment was invalid, 
 because it was made by a committee of the directors. But the articles have 
 in terms provided that the directors might delegate anytliing to a committee; 
 
 and American Telegraph Company v. Cokon (Law Eep. 6 Ex. 108) the letter of 
 allotment was never received. The facts of the present case came to this : The offer 
 made on the 5th of March was a continuing offer on the 15th, when it was duly 
 accepted. The allotment of shares was made and duly communicated to Mr. Harris 
 by a letter posted before he wrote the letter repudiating the shares. The contract was, 
 therefore, at aU events, complete when the letter of allotment was posted ; and his 
 letter of repudiation was too late, for he was bound by his letter of acceptance. 
 
 The next point relied upon was that the letter of allotment fixed the 21st of March 
 for payment of the call, and provided for payment of interest if the calls were not 
 punctually paid ; and this, it was said, introduced a new term. But fixing the 21st of 
 March instead of the date of the allotment, was an extension of time in favour of the 
 allottee ; and as to interest, the allottee was to receive interest, and could anything be 
 more reasonable than telling him that he must pay, or, in other words would not 
 receive interest unless he paid the money? This was not the introduction of a new 
 term, but a reasonable intimation. The case of the Oriental Inland Steam Company v. 
 Brigys (4 D. F. & J. 191) was unhke this, as a new and unusual term was certainly 
 introduced m that case. In Peek's Case (Law Eep. i Ch. 532) the allottee was held to 
 his contract. 
 
 All the objections had failed, and Mr. Harris's name must remain on the list, and 
 he must pay the costs of the summons. 
 
 1 Law Eep. 6 Ex. 108. = Ibid. 13 Eq. 148. ■' Ibid. 4 Eq. 9. 
 
 ■■ 1 H. L. C. 381. = 4 D. F. & J. 191. -^ Law Eep. 5 H. L. 04.
 
 CHAP. l] HAKIUS' CASE. 139 
 
 and that they did delegate this duty to this committee ajipears in evidence 
 before us. It was a proper and reasonable mode of dealing with such 
 a thing as the investigation of the appUcations for shares and the allot- 
 ment of them. It appears to me, therefore, that there is nothing in that 
 ground of appeal. 
 
 The second ground is that on which the greater part of the argument 
 has been addresse.l to us ; that there was a letter posted in Dublin 
 recalling the application for shares before the letter posted in London 
 contaiaiing the notice of the allotment was received in Dublin ; the letter 
 of revocation not being in the course of post capable of arriving in London 
 before the letter of allotment was actually posted by the company. 
 
 Now it appears to me that the Vice-Chancellor's decision is correct, 
 and that the contract was completed the moment the notice of allotment 
 was committed to the post addressed to tiie address Ln Dublin which 
 Mr. Harris himself had given. That decision seems to me to be entirely 
 in accordance with a great number of cases in this Court, and to be 
 utterly undistinguishable, in principle or in fact, from Dunlop v. I/it/r/ins', 
 a case which is binding upon us, and in which every principle argued 
 before us was discussed at length by the Lord Chancellor in giving 
 judgment. He arrived at the conclusion that the posting of the letter of 
 acceptance is the completion of the contract ; that is to say, the moment 
 one man has made an ofler, and the other has done something binding 
 himself to that ofler, then the contract is complete, and neither party can 
 afterwards escape from it. That is in fact the decision in Ilebb's Case ', 
 though in that particular case a distinction was taken by the Master 
 of the Rolls that the company chose to send the letter to their o\n\ atrent, 
 which agent had not been authorized by the applicant to receive it on 
 his behalf. 
 
 Against this current of authority there is the case of British and 
 American Telegraph Company v. Colson', in which the Court of 
 Exchequer — not disputing the authority of the pre\ious decisions, 
 because, of course, they could not dispute the authority of a case in 
 the House of Lords — established a distinction which does not apply to this 
 case at all. The Court there held that although the posting of the letter, 
 if the letter arrives, is a complete contract, yet if from any cause, such as 
 a failure of duty by the Post Office, the letter never arrives at all, then 
 there is a difference. 
 
 It seems to me not necessary to express any opinion as to wliether 
 that distinction is sound or not, but that was the ground upon which 
 the Judges proceeded in that case. In this case the letter did arrive, 
 and having arrived the contract was complete, and could not be revoked, 
 from the time when the letter was posted. It was completed in exactly 
 tlie way which the Appellant desired, that is to say, he gave his address 
 in Dublin, and the company, according to the ordinary usage of mankind 
 1 1 H. L. C. 381. = Law Rep. 4 Eq. 9. = Law Eep. 6 Ex. 108.
 
 14.0 HARRIS' CASE. [CHAP. I 
 
 in tliose matters, returned their answer thi-ough the post. Tliat is a 
 complete contract. It does not signify wliat was the particular liour 
 of arrival of the one letter or the othei-, or which was the first, the delivery 
 in Lotidon or the delivery in Dublin. That appears to me wholly im- 
 material, because the contract was completed at the time when the letter 
 of allotment was properly posted by the company. 
 
 The other point raised was, that thei'e was a condition annexed to 
 tliis allotment letter, and on this point the case of English and Foreign 
 Credit Company v. Arduin ' was cited. Now the facts in that case were 
 such as persons might differ about, and tlie Exchequer Chamber held one 
 way while tlie house of Lords held anotlier way. But the principle upon 
 which they all proceeded, which is the only thing we have to deal witli, 
 was, that where there is an acceptance of an ofler, if there is to be a term 
 or condition imposed, it must be clearly so stated, otherwise it is to 
 be considered simply as a notification which may have such effect as 
 it ought to have in a Court of Law. Here the acceptance was un- 
 qualified : — [His Lordship read the letter of allotment.] It appears to me 
 that the statement as to interest does not introduce a new stipulation. 
 It is not that the allottee is to have the shares provided that lie under- 
 takes to pay 10 per cent., but it is that he ought to pay exactly on the 
 21st of March, 1866, and that by way of indulgence the directors have 
 told the bankers, that if the allottee subsequently pays the same rate of 
 interest which he would be entitled to receive, then they are authorized to 
 receive payment, but not otherwise. It is a mere notification, not 
 intended to be a new stipulation, and it never was considered by the Appel- 
 lant, or by anybody who received such a letter, as a new term introduced. 
 It would be contrary to the usage of all mankind to treat this as being the 
 introduction of a new term, altering or aflecting the express acceptance of 
 the application for shares. 
 
 I am of opinion, therefore, that the order of the Vice-Chancellor is 
 riglit, that on all the grounds this appeal has failed, and must be dismissed 
 with costs. 
 
 Sir G. Mellish, L.J. : — 
 
 I am of the same opinion, and I agree witli what the Lord Justice has 
 said on the first and the last grounds, and also on the second ground. 
 The only part of the case upon wliich I wish to add any observations is on 
 the second ground, which raises a question of very great general importance, 
 and that is this : When a person in one part of the country writes to a 
 person in another part of tlie country a letter containing an oiler, and 
 eitlier directly or impliedly tells him to send his answer by post, and an 
 answer accepting that ofler is returned by post, when is a complete con- 
 tract made % Is it made at the time when the letter accepting the offer 
 is put into the post, or is it not made until that letter is received 1 It 
 
 ' Law Kep. 5 H. L. 64.
 
 CHAP, l] HARRIS' CASE. 141 
 
 was contontled before us that it is not made until the letter is received ; so 
 that until it is received the contract may be revoked by the person who 
 has made the offer. 
 
 Now throughout the argument I have been forcibly struck with the 
 extraordinary and very mischievous consequences which would follow if it 
 were held that an offer might be revoked at any time until the letter 
 accepting it had been actually received. No mercantile man who has 
 received a letter making him an ofi'er, and has accepted the offer, could 
 safely act on that acceptance after he has put it into the post until he 
 knew that it had been received. Every day, I presume, there must be a 
 large number of mercantile letters received which require to be acted 
 upon immediately. A person, for instance, sends an order to a merchant 
 in London offering to pay a certain price for so many goods. The merchant 
 writes an answer accepting the offer, and goes that instant into the market 
 and purchases the goods in order to enable him to fulfil the contract. But 
 according to the argument presented to us, if the person who has sent the 
 offer finds that the market is falling, and that it will be a bad bargain for 
 him, he may at any time, before he has received the answer, revoke his 
 offer. The consequences might be very serious to the merchant, and might 
 be much more serious when the parties are in distant countries. Suppose 
 that a dealer in Liverpool writes to a dealer in New York and offers to buy 
 so many quarters of corn or so many bales of cotton at a certain price, 
 and the dealer in New York, finding that he can make a favourable 
 bargain, writes an answer accepting the offer. Then, according to the 
 argument that has been presented to us to-day, during the whole time that 
 the letter accepting the offer is on the Atlantic, the dealer who is to 
 receive it in Liverpool, if he finds that the market has fallen, may send a 
 message by telegraph and revoke his offer. 
 
 Nor is there any difference between an offer to receive shares and an 
 offer to buy or sell goods. And yet, if the argument is sound, then for 
 nearly ten days tlie buyer might wait and speculate whether the sliares 
 were rising or falling, and if he found they were falling he might revoke 
 his ofler. Those consequences are very extraordinary, and I always under- 
 stood the law to be the other way until the case of British and Anv/rican 
 Telegraph Company v. Colson^, which has caused some doubt on the 
 subject. 
 
 I will shortly refer to the previous cases on the subject. The first 
 case is Adams v. Lindsell'. No doubt there were two points in that 
 case. An offer was sent by post, but the letter was misdirected through 
 the mistake of the party who sent it, and therefore did not arrive until 
 two days afterwards. And that point was disposed of during the 
 argument, that inasmuch as it was the fault of the party sending it, the 
 answer having been written and posted as soon as it did arrive, no 
 advantage could be taken of the delay caused by the misdirection. But 
 1 Law Kep. G Ex. 108. '- 1 B. tt A. 081.
 
 14:2 HARRIS' CASE. [ClIAP. I 
 
 the person who sent the offer, finch'ng no answer had arrived, sold tlie 
 goods before the answer had arrived, and then it was argued that until 
 the answer was actually received there could be no binding contract 
 between the parties, and therefore no breach of it. But tlie Court of 
 King's Bench said that if the law was so, "no contract could ever be 
 completed by the post. For if the Defendants were aot bound by their 
 offer when accepted liy the Plaintiffs till the answer was received, then the 
 Plaintiffs ought not to be bound till after they had received the notification 
 that the Defendants had received their answer and assented to it ; and so 
 it might go on ad itifitutum." That appears to me to be at any rate an 
 expression of opinion on the part of the Court there, that when an offer 
 is made by letter, and is accepted by a letter which is posted, then there 
 is a binding contract between the parties from the time when the letter is 
 posted. 
 
 In Diinlop V. Uiggins ' the question was directly raised whether 
 the law was truly expounded in the case of Adams v. LindselJ, and the 
 House of Lords approved of the ruling in that case. The Lord Chancellor 
 Cottenham said, in the course of his judgment, that in the case of a bill of 
 exchange, notice of dishonour given by putting a letter into the post at the 
 right time had been held quite sufficient, whether that letter was delivered 
 or not; and he referred to Stocken v. Collin" as an authority on that 
 point, he being clearly of opinion that the rule as to accepting a contract 
 was exactly the same as the rule as to sending notice of dishonour of a bill 
 of exchange. He then referred to the case of Adams v. Lindsell,^ and 
 quoted the observation of Lord Ellenborough. That case therefore 
 appears to me to be a direct decision that the contract is made from the 
 time when it is accepted by post. 
 
 There is then the case of Duncan v. Topliam^, in which there were 
 no doubt several questions, on one of which, whether posting the 
 acceptance was sufficient, Mr. Justice Cresswell told the jury that if the 
 letter accepting the contract was put into the Post Office, and lost by the 
 negligence of the Post Office authorities, the contract would nevertheless 
 be complete. There was then a motion for a new trial, and though Mr. 
 Baron Bramwell, in British and American Telegraph Company v. Colson\ 
 has said that he thought the case not properly reported, still it appears 
 as if Mr. Justice Manic and Chief Justice Wilde both assented to the 
 ruling of Mr. Justice Creswell, and refused the rule on that point. 
 
 In addition to that, there is the case of Potter v. Sanders", wliich is 
 also a direct decision of a Court of Equity on the point. 
 
 Against them there is simply this case of British and American 
 Telegraph Company v. Colson, and that is not a direct decision on this 
 point. The Lord Chief Baron, in the course of his judgment, says, it may 
 be that if the letter arrives in time, then the contract will be treated as 
 
 1 1 H. L. C. 381. = 7 M. & W. 515. s i B. & A. 681. 
 
 •> 8 C. B. 225. 5 Law Bep. 6 Ex. 108. n 6 Hare, 1.
 
 CHAP. l] HOUSEHOLD FIRE INSURANCE COIIPANY V. GRANT. 1411 
 
 having been made from the thiie when the letter was put into the post ; 
 but I do not see how there can be any relation back in a case of this 
 kind, as there may be in bankruptcy. If the contract, after the letter has 
 arrived in time, is to be treated as having been made from the time the 
 letter is posted, the reason is that the contract was actually made at the 
 time when the letter was posted. Still that case is not a direct decision 
 on the point before us, though I confess I have gre.at difficulty in recon- 
 ciling it with the previous decision in Dunlop v. Uiggins^. That case 
 was commented on at considerable length both by the Lord Chief Baron 
 and by Baron Bramwell, but they only commented on the facts of tlie case, 
 and shewed — which I think they did shew — that according to the facts of 
 the case the Plaintiff might very well have had a verdict, even if the rule 
 of law had been that the contract was not made until the letter arrived, 
 because there the only thing which prevented the arrival of the letter was 
 the bad weather, which made the mail very late. And therefore I agree, 
 upon the facts of that case, that the Plaintiff might have recovered, even 
 although the law was that the contract was not made until the letter 
 arrived. But then the real question before the House of Lords in Dunlop 
 V. Higgins was, whether the ruling of the Lord Justice General was 
 correct in point of law, and the House of Lords held that it was correct. 
 
 However, I agree with the Lord Justice that it is not necessary to 
 give any decisive opinion on the point, because although the contract is 
 complete at the time when the letter accepting the offer is posted, yet it 
 may be subject to a condition subsequent that if the letter does not arrive 
 in due course of post, then the parties may act on the assumption that the 
 offer has not been accepted. That, however, is not the case before us ; 
 the letter did arrive in due time; and the question is whether, under that 
 state of circumstances, the parties are bound by the contract. 
 
 THE HOUSEHOLD FIRE AND CARP.IAGE ACCIDENT 
 INSURANCE COMPANY (LIMITED) v. GRANT. 
 
 In the Court of Appeal May 22, July 1, 1879. 
 
 {ricported in 4 Exchequer Division, 21G.] 
 
 Action to recover 94?. 15s. being the balance due upon 100 shares 
 allotted to the defendant on the 2.'ith of October, 1874, in pursuance of an 
 application from the defendant for such shares dated the 30th of Septem- 
 ber, 1874. 
 
 At the trial before Lopes, J., during the Middlesex Sittings, 1878, the 
 following facts were proved. In 1874 one Kcndrick was acting in 
 
 1 1 H. L. C. 381.
 
 144 HOUSEHOLD FIRE INSURANCE COMPANY )'. GRANT. [CIIAI*. I 
 
 Glamorgcanshire as the agent of the company for the placing of their 
 sliares, and on the 30tli of September the defendant handed to Kendrick 
 an application in writing for shares in the plaintifl"'s company, which 
 stated that the defendant had paid to the bankers of the company 51., 
 being a deposit of Is. per share, and requesting an allotment of 100 shares, 
 and agreeing to pay the further sum of 19«. per share within twelve 
 months of the date of the allotment. Kendrick duly forwarded this 
 application to the plaintiffs in London, and the secretary of the company 
 on the 20th of October, 1874, made out the letter of allotment in favour 
 of the defendant, which was posted addressed to the defendant at his 
 residence 16, Herbert Street, Swansea, Glamorganshire; his name was 
 then entered on the register of shareholders. This letter of allotment 
 never reached the defendant. The defendant never paid the 5^. mentioned 
 in his application, but the plaintifls' company being indebted to the 
 defendant in the sum of 51. for commission, that sum was duly credited to 
 liis account in their books. In July, 187.5, a dividend at the rate of 
 2| per cent, was declared on the shares, and in February, 1876, a further 
 dividend at the same rate ; these dividends, amounting altogether to the 
 sum of 5s., was also credited to the defendant's account in the books of the 
 plaintifls' company. Afterwards the company went into liquidation, and 
 on the 7th of December, 1877, the official liquidator applied for the sum 
 sued for from the defendant ; the defendant declined to pay on the ground 
 that he was not a shareholder. 
 
 On these facts the learned judge left two questions to the jury. 
 
 1. Was the letter of allotment of the 20th of October in fact posted? 
 
 2. Was the letter of allotment received by the defendant? The 
 jury found the first question in the affirmative and the last in the 
 negative. 
 
 The learned judge reserved the case for further consideration, and 
 after argument directed judgment to be entered for the plaintiffs on the 
 authority of JDunlop v. Higgins '. 
 
 The defendant appealed. 
 
 May 22. Finlay and DiUwijn, for the defendant, contended that the 
 defendant was not a shareholder, for it was necessary that the allotment 
 of shares should not only be made but also communicated to the defendant ; 
 that a letter posted but not received was not a communication to the 
 defendant of the allotment, and that there was therefore no contract 
 between the parties. 
 
 Wilberforce, and G. Arbuthnot (W. G. Harrison, Q.C., with them), for 
 the plaintiffs, contended that the contract was complete by acceptance 
 when the letter was posted, and that the plaintifls were not answerable 
 for casualties at the post office preventing the arrival of the letter. 
 
 In addition to the authorities mentioned in the judgment, the following 
 1 1 H. L. C. 381.
 
 CHAP, l] HOUSEHOLD FIRE INSURANCE COMPANY )'. GRANT. 1+.") 
 
 cases were cited during the argument : Bciilpnth'g Case ' ; ToumnfiKr.i 
 Case"; Wall's Case/; Guan's Case*; Dunmore v. Alexander''; Pelhti's Case" ; 
 Ex j)a}-te Cole'; Taylor v. Jones" ; Pollock on the Law of Contracts, p. 13. 
 
 Cur. adv. vult. 
 
 July 1. The following judgments were delivered : — 
 
 TiiESiGER, L.J. In this case the defendant made an application for 
 sliares in the plaintiffs' company under circumstances from wliich we 
 must imply that he authorised tlie company, in the event of their allotting 
 to liim the shares applied for, to send the notice of allotment by post. 
 The company did allot him the shares, and duly addressed to him and 
 posted a letter containing the notice of allotment, but upon the finding of 
 the jury it must be taken that the letter never reached its destination. 
 In this state of circumstances Lopes, J., has decided that the defendant is 
 liable as a shareholder. He based his decision mainly upon the ground 
 that the point for his consideration was covered by authority binding 
 upon liim, and I am of opinion that he did so rightly, and that it is 
 covered by authority equally binding upon this Court. 
 
 The leading case upon the subject is Dunlop v. Ilir/t/ins". It is true 
 that Lord Cottenham might have decided that case without deciding the 
 point raised in this. But it appears to me equally true that he did not do so, 
 and that he preferred to rest and did rest liis judgment as to one of the 
 mattei's of exception before him upon a principle which embraces and 
 governs the present case. If so the Court is as much bound to apply that 
 principle, constituting as it did a ratio decidendi, as it is to follow the 
 exact decision itself. The exception was that the Lord Justice General 
 directed the jury in point of law that, if the pursuers posted their accept- 
 ance of the offer in due time, according to the usage of trade they were 
 not re.sjjonsible for any casualties in the post office establishment. This 
 direction was wide enough in its terms to include the case of the acceptance 
 never beinj^ delivered at all ; and Lord Cottenham, in expressing his 
 opinion that it was not open to objection, did so after putting the case of 
 a letter containing a notice of dishonour posted by the holder of a bill of 
 exchange in proper time, in which case he said'", "Whether that letter be 
 delivered or not is a matter quite immaterial, because for accidents 
 happening at the post office he is not responsible." In short, Lord 
 Cottenham appears to me to have held that, as a rule, a contract formed 
 by correspondence through the post is complete as soon as the letter 
 accepting an offer is put into the post, and is not put an end to in the 
 event of the letter never being delivered. My view of the effect of 
 
 ' Law Eep. 11 Eq, 86. " Law Kep. 13 Eq. 148. 
 
 ' Law Eep. 15 Eq. 18 * Law Eep. 3 Ch. 40. 
 
 5 9 Shaw & Dunlop, 190. « Law Eep. 2 Ch. 527. 
 
 ' Law Eep. 9 Ch. 27. « 1 C. P. D. 87. 
 
 » 1 H. L. C. 381. '» 1 H. L. C. at p. 399. 
 F. 10
 
 14-G imrsEHOLi) fire insurance company v. grant, [chap. I 
 
 Diuilop V. J/!;/r/iHs' is that taken liy James, L.J., in Harris' Case-, there'' 
 he speaks of tlie former case as " a case wliich is binding upon us, and in 
 whioli every principle argued before us was discussed at length by the 
 Lord Chancellor in giving judgment," he adds, the Lord Chancellor 
 " arrived at the conclusion that the posting of the letter of acceptance is 
 the completion of the contract ; that is to say, the moment one man has 
 made an offer, and the other has done something binding himself to that 
 offer, then the contract is complete and neither party can afterwards 
 escape from it." Mellish, J., also took the same view, he says* "in 
 Dunlop V. Hir/f/ins' the question was directly raised whether the law was 
 truly expounded in the case of Adams v. Lindsell''. The House of Lords 
 approved of the ruling of that case. The Lord Chancellor Cottenliam 
 said, in the course of his judgment, that in the case of a Ijill of exchange 
 notice of dishonour, given by putting a letter into the post at the right 
 time, had been held quite sufficient whether that letter was delivered or 
 not ; and he referred to Slacken v. Collin" on that point, he being clearly 
 of opinion that the rule as to accepting a contract was exactly the same as 
 the rule as to sending notice of dishonour of a bill of exchange. He then 
 referred to the case of Adauis v. Lindsdl^, and quoted the observation of 
 Lord Ellenborough, C.J. That case therefore appears to me to be a direct 
 decision that tlie contract is made from the time when it is accepted by 
 post." Leaving Harris' Case " for the moment, I turn to Duncan v. 
 Topham'', in which Cresswell, J., told the jury that if the letter accepting 
 the contract was put into the post office and lost by the negligence of the 
 post office authorities, the contract would nevertheless be complete ; and 
 both he and Wilde, C.J., and Maule, J., seem to have understood this 
 ruling to have been in accordance with Lord Cottenham's opinion in 
 Dunlop V. Hiygins '. That opinion therefore appears to me to constitute 
 an autliority directly binding upon us. But if Dunlop v. Higgins ' were 
 out of the way, Harris' Case" would still go far to govern the present. 
 There it was held that the acceptance of the offer at all events binds both 
 parties from the time of the acceptance being posted, and so as to prevent 
 any retractation of the offer being of effect after the acceptance has been 
 posted. Now, whatever in abstract discussion may be said as to the legal 
 notion of its being necessary, in order to the effecting of a valid and 
 binding contract, that the minds of the parties should be brought together 
 at one and the same moment, that notion is practically the foundation of 
 English law upon the suliject of the formation of contracts. Unless 
 therefore a contract constituted by correspondence is absolutely concluded 
 at the moment that the continuing offer is accepted by the person to 
 whom the offer is addressed, it is difficult to see how the two minds are 
 ever to be brought together at one and the same moment. This was 
 pointed out by Lord Ellenborough in the case of Adams v. LindseU\ 
 
 1 1 H. L. C. 381. 2 Law Eep. 7 Ch. 587. » At p. 592. •> At p. 595, 
 
 •■■' 1 B. & A. 081. 6 7 M. * W. 515. ? 8 C. B. 225.
 
 CHAP. l] HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 147 
 
 wliicli is recognized authority upon tliis hr.-xnch of tlic law. l!u(, on the 
 other hand it is a principle of law, as well e.stablished as the legal notion 
 to which I have referred, that the minds of the two parties must be 
 brought together by mutual communication. An acceptance, which only 
 lemains in the breast of the acceptor witliout being actually and by legal 
 implication communicated to the offerer, is no binding acceptance. How 
 then are these elements of law to be harmonised in the case of contracts 
 fomied by correspondence through the postl I see no better mode than 
 that of treating the post office as the agent of both parties, and it was so 
 considered by Lord Eomilly in Hehb's Case ', when in the course of his 
 judgment he said: " Buiilop v. lliggbis'' decides tiiat the posting of 
 a letter accepting an offer constitutes a binding contract, but the reason of 
 tliat is, that the post office is the common agent of both parties." Alder- 
 son, B., also in Utocken v. Collin ^, a case of notice of dishonour, and the 
 case referred to by Lord Cottenham, says : " If tlie doctrine that the post 
 office is only tlie agent for the delivery of the notice were correct no one 
 could safely avail himself of that mode of transmission." But if the post 
 office be such common agent, then it seems to me to follow that, as soon 
 as the letter of acceptance is delivered to the post office, the contract is 
 made as complete and final and absolutely binding as if the acceptor liad 
 put his letter into the hands of a messenger sent by the offerer himself as 
 liis agent to deliver the offer and receive the acceptance. What other 
 principle can be adopted sliort of holding that the contract is not complete 
 by acceptance until and except from the time that the letter containing 
 the acceptance is delivered to the offerer, a principle which has been 
 distinctly negatived 1 This difficulty was attempted to be got over in the 
 British and American Telpyraph Co. v. Colson*, which was a case directly 
 on all fours with the present, and in which Kelly, C.B. ^ is reported to 
 have said, " It may be that in general, though not in all cases, a contract 
 takes effect from the time of acceptance and not from the subsequent 
 notification of it. As in the case now before the Court, if the letter of 
 allotment had been delivered to the defendant in the due course of the 
 post he would have become a shareholder from the date of the letter. 
 And to this effect is Potter v. Sanders ". And hence perhaps tlie mistake 
 has arisen that the contract is l>inding upon both parties from the time 
 when the letter is written and put into the post, although never delivered ; 
 whereas althougli it may be binding from the time of acceptance, it is only 
 binding at all when afterwards duly notified." But with deference I 
 would ask how a man can be said to be a shareholder at a time before he 
 was bound to take any shares, or to put the question in the form in which 
 it is put by Mellish L. J., in Harris' Case ' how there can be any relation 
 back in a case of this kind as tliere may be in baidiruptcy. If, as the 
 
 ' Law Rep. 4 Eq. at p. 12. - 1 H. L. C. 381. ^ 7 U.&W.at p. 51G. 
 
 ■• Law Rep. 6 Ex. 108. ^ At p. 115. « G Hare, 1. 
 
 1 Law Rep. 58G, at p. 59G. 
 
 10—2
 
 148 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 T.ni-cl Justice said, the contract after tlie letter lias arrived in time is to be 
 treated as having been made from the time the letter is posted, the reason 
 is that the contract was actually made at the time when the letter was 
 posted. The principle indeed laid down in Harris' Case^ as well as in 
 Dimlnp V. Iliffffitis', can really not be reconciled with the decision in the 
 British and American Telegraph Co. v. Colson^. James, L.J., in the 
 passage I have already quoted * affirms the proposition that when once the 
 acceptance is posted neither party can afterwards escape from the contract, 
 and refers, with approval, to HehUs Case \ There a distinction was taken 
 by the Master of the Rolls that the company chose to send the letter of 
 allotment to their own agent, who was not authorized by the applicant for 
 shares to receive it on his behalf, and who never delivered it, but he at 
 the same time assumed that if, instead of sending it through an authorized 
 agent they had sent it through the post office, the applicant would have 
 been bound although the letter had never been delivered. Mellish, L.J., 
 really goes as far, and states forcibly the reasons in favour of this \'iew. 
 The mere suggestion throwTi out (at the close of his judgment, at p. 597), 
 when stopping short of actually overruling the decision in the British and 
 American Telegraph Co. v. Colson", that although a contract is complete 
 when the letter accepting an offer is posted, yet it may be subject to a 
 condition subsequent that, if the letter does not arrive in due course of 
 post, tlien the parties may act on the assumption that the ofter has not 
 been accepted, can hardly, when contrasted with the rest of the judgment, 
 be said to represent his own opinion on the law upon the subject. The 
 contract as he says ", is actually made when the letter is posted. The 
 acceptor, in posting the letter, has, to use the language of Lord Blackburn, 
 in Brogden v. Directors of Metropolitan Ry. Co. '', "put it out of his control 
 and done an extraneous act which clenches the matter, and shews beyond 
 all doubt that each side is bound." How then can a casualty in the post, 
 whether resulting in delay, which in commercial transactions is often as 
 bad as no deliveiy, or in non-delivery, unbind the parties or unmake the 
 contract 1 To me it appears that in practice a contract complete upon the 
 acceptance of an offer being posted, but liable to be put an end to by an 
 accident in the post, would be more mischievous than a contract only 
 binding upon the parties to it upon the acceptance actually reaching 
 the offerer, and I can see no piTnciple of law from which such an anomalous 
 contract can be deduced. 
 
 There is no doubt that the implication of a complete, final, and 
 absolutely binding contract being formed, as soon as the acceptance of an 
 offer is posted, may in some cases lead to inconvenience and hardship. 
 But such there must be at times in every view of the law. It is impossible 
 in transactions which pass between parties at a distance, and have to be 
 
 ' Law Rep. 586, at p. 596. = 1 H. L. C. 381. » Law Kep. 6 Ex. 108. 
 
 ■• Harris' Case, Law Eep. 7 Oh. 592. = Law Eep. 4 E(i. 0. <* At p. 536. 
 
 ' 2 App. Cas. OfiCi, (i',11.
 
 CHAP, l] HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 149 
 
 curried on through tlie medium of correspondence, to adjust conflicting 
 riglits between innocent parties, so as to make the consequences of 
 mistake on the part of a mutual agent fall equally upon the shoulders of 
 both. At the same time I am not prepared to admit that the implication 
 in question will lead to any gi-eat or general inconvenience or hardship. 
 An oflerer, if he chooses, may always make the formation of the contract 
 which he proposes dependent upon the actual communication to himself of 
 the acceptance. If he trusts to the post he trusts to a means of communi- 
 cation which, as a rule, does not fail, and if no answer to his offer is 
 received by him, and tlie matter is of importance to him, he can make 
 inquiries of the person to whom his ofler was addressed. On the other 
 hand, if the contract is not finally concluded, except in the event of the 
 acceptance actually reaching the oflerer, the door would be opened to the 
 perpetration of much fraud, and, putting aside this consideration, consider- 
 able delay in commercial transactions, in which despatch is, as a rule, of 
 the greatest consequence, would be occasioned ; for the acceptor would 
 never be entirely safe in acting upon his acceptance until he had received 
 notice that his letter of acceptance had reached its destination. 
 
 Upon balance of conveniences and inconveniences it seems to me, 
 applying with slight alterations the language of the Supreme Court of the 
 United States in Tayloe v. Merchants Fire Insurance Co. ', more consistent 
 with the acts and declarations of the parties in this case to consider the 
 contract complete and alisolutely l:>inding on the transmission of the notice 
 of allotment through the post, as the medium of communication that the 
 parties themselves contemplated, instead of postponing its completion 
 until the notice had been received by the defendant. Upon principle, 
 therefore, as well as authority, I think tliat the judgment of Lopes, J., 
 was right and should be afiirmed, and that this appeal should therefore be 
 dismissed. , 
 
 Baggallat, L.J. I am of opinion that this appeal should be dis- 
 missed. 
 
 It has been established by a series of authorities, including Diinlop v. 
 Hiygins, in the House of Lords ^, and Harris^ Case", in the Court of 
 Appeal in Chancery, that if an ofler is made by letter, which expressly or 
 impliedly authorizes the sending of an acceptance of such ofler by post, 
 and a letter of acceptance properly addressed is posted in due time, a 
 complete contract is made at the time when the letter of acceptance is 
 posted, though there may be delay in its deliveiy. 
 
 The question involved in the present appeal is, whether the same 
 principle should be applied in a case in which tlie letter of acceptance, 
 though duly posted, is not delivered to the person to whom it is addressed. 
 Lopes, J., was of opinion that the principle was applicable to sudi a ease, 
 
 1 9 Howard S. Ct. Kep. 390. - 1 H. L. C. 381. 
 
 ^ Law Eep. 7 Ch. .587.
 
 150 HOUSEHOLD TIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 and gave judgment in favour of tlie plaintiffs, and from sucli judgment 
 the present appeal is brouglit. 
 
 In support of his appeal tlie defendant relies upon the decisions of the 
 Court of Exchequer in the case of the British and American Telegrajih Co. 
 V. Colson ', to wliich, for conciseness, I will refer as Colson's Case '. I 
 propose to consider Bunlop v. Higgins ^ and Colson's Case ' and Harris' 
 Case" somewhat in detail, for the pui-pose of ascertaining whether the 
 decision of the Court of Excliequer in Colson's Case^ is consistent ^vith the 
 decisions of the House of Lords and the Lords Justices in the other two 
 cases, and with the principles upon which such decisions were based. 
 
 The circumstances of Dunlop v. Higgins ' were as follows : After 
 a preliminary correspondence Messrs. Dunlop & Co., who were merchants 
 at Glasgow, addressed a letter on the 28th of January, 1845, to Messrs. 
 Higgins & Co., who carried on business at Livei-pool, offering them 
 2000 tons of iron pigs at 65s. per ton net. This letter reached Higgins & 
 Co. at 8 A.M. on the 30th of January, and on the same day they replied by 
 letter duly addressed to Dunlop & Co. in the following terms : " We will 
 take the 2000 tons pigs you offer us." 
 
 It appeared by tlie evidence that the first post for Glasgow, after tlie 
 receipt by Higgins & Co. of the letter of Dunlop & Co. left Liverpool at 
 3 P.M. on the 30tli, and that the post next following left at 1 a.m. of the 
 31st, and also that a letter despatched by the former post would in due 
 course arrive at Glasgow at 2 p.m. on the 31st, and by the latter in time 
 to be delivered at 8 a.m. on the 1st of February. The letter so sent by 
 Higgins ife Co. was posted after the bags were made up for the 3 p.m. post, 
 and was despatched by the 1 a.m. post on the 31st. In due course it 
 should have been delivered in Glasgow at 8 a.m. on the 1st of February, 
 but it was not in fact delivered until 2 p.m. on that day, the frosty state of 
 the weather having prevented the train from Liverpool arriving at War- 
 rington in time to meet the down train to Glasgow. It appeared, also, 
 that Higgins & Co., by mistake, dated their letter as of the 31st of 
 January instead of the 30th of January. On the 1st of February, after 
 the receipt of the letter of Higgins ife Co. accepting the offer, Dunlop & 
 Co. wrote to Higgins & Co., "We have your letter of yesterday's date, but 
 are sorry that we cannot now enter the 2000 tons, our offer not being 
 accepted in time." The iron was not delivered, and Higgins ife Co. 
 brought their action for breach of contract. The defence of Dunlop ifc Co. 
 was that their letter of the 28th should have been answered by the first 
 post, \\z., by that which left Liverpool at 3 p.m. on the 30th, but that at 
 any rate they were not bound to wait for a third post delivered at Glasgow 
 at 2 P.M. on the 1st of February. 
 
 On the trial before the Lord Justice General, he admitted evidence to 
 shew that the letter of acceptance, though dated the 31st, was in fact 
 written and posted on the 30th of January, and he directed the jury that 
 > Law Rep. 7 Ex. 108. = 1 H. L. C. 381. ^ l^w Rep. 7 Ch. 587.
 
 CHAP. l] HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 151 
 
 if Higgins & Co. posted their acceptance of the offer in due time, according 
 to tlie usage of trade, they were not responsible for any casualties in tlie 
 post office establishment. 
 
 It is important to bear in mind the terms of this direction, as it 
 formed the substantial subject of appeal, first to the Court of Session and 
 thence to the House of Lords. The jury found for the plaintiffs ; that is 
 to say, they found as a fact that the letter of Higgins &, Co. was posted in 
 ihie time according to tlie usage of the parties in their business transactions, 
 and having so found they, under the direction of the judge, gave their 
 verdict for the plaintiffs. Exceptions were therefore taken by the 
 defendants, and, aihongst other grounds of exception, they objected to the 
 admission of evidence as to the posting of the letter on the SOtli of 
 Januaiy, and to the direction of the Lord Justice General, to which I 
 have just referred. The exceptions were overruled by the judges of the 
 First Division, and from their decision the defendants appealed to the 
 House of Lords ; the appeal was dismissed, and the ruling and direction of 
 tlie Lord Justice General were upheld. 
 
 Though the question in dispute between the parties was whether 
 Higgins & Co. were responsible for the delay in the delivery of the post, it 
 is observed that the direction of the judge went further, for he ruled that 
 if their letter was duly posted they were not responsible for any casualties 
 in the post office establishment. During the argument Lord Cottenham 
 said, " The question is whether putting in the post is a virtual acceptance, 
 tliough by tlie accident of the post it does not arrive " ; and, in moving tlie 
 judgment of the House, he observed, " if a man does all that he can do, that 
 is all that is called for; if there is a usage of trade to accept such an offer and 
 to foi-ward it by means of the post, and if the party accepting the offer 
 puts his letter into the post on the correct day, has he not done every 
 tiling he was bound to do ; how can he be responsible for that over which 
 he has no control ? " There is nothing in the language of Lord Cottenham 
 to suggest any distinction between a case in which there is delay in the 
 delivery of the letter and one in which the letter is not deli\ered at all. 
 But Lord Cottenham went on to illustrate his meaning, and did so in the 
 following terms : "It is a very frequent occurrence that a party having a 
 bill of exchange which he tenders for payment to the acceptor, and 
 acceptance is refused, is bound to give the earliest notice to the drawer. 
 That pereon may be resident many miles distant from him ; if lie puts a 
 letter into the post at the right time it has been held quite sufficient ; he 
 has put the letter into the post, and whether that letter be delivered or 
 not is a matter quite immaterial, because for accidents happening at the 
 post office he is not responsible." Having regard to the passages in Lord 
 Cottenham's judgment, it appears to me impossible to doubt that the 
 proposition which he intended to affirm, and which was in fact his ratio 
 decidendi, was this, that when the letter accepting the offer was duly 
 posted, the contract was complete, althougli it miglit be delayed in
 
 152 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 its delivery or might never reach the liands of the party making the 
 offer. 
 
 I desire liowever to guard myself against being considered as partici- 
 pating in a view of the effect of the decision in Dunlop v. Hiygins ' which 
 has been sometimes adopted, and as I think without sufficient reason, viz. 
 that in all cases in wliich an offer is accepted by a letter addressed to the 
 party making the offer and duly posted, there is a binding contract from 
 the time when such letter is posted. I do not take this view of the efiect 
 of the decision in Dunlop v. Higgins '. On the contrary, I think tliat the 
 principle established by that case is limited in its application to cases in 
 which by reason of general usage, or of the relations between the parties 
 to any particular transactions, or of the terms in which the offer is made, 
 the acceptance of such offer by a letter through the post is expre.ssly or 
 impliedly authorized. In Bunlop v. Higgins ' the previous correspondence 
 between the two firms was, in my opinion, quite sufficient, not only 
 to authorize the sending of the acceptance by post, but to point to it as 
 the only mode in whicli, under the circumstances, such acceptance could 
 l)e communicated, and it was in consequence of the jury finding it as a 
 fact that Higgins &, Co. posted their acceptance of the offer to Dunlop & 
 Co. in due time, according to the usage of their business transactions, that 
 they found a verdict for the plaintiffs under the direction of the judge. 
 The principle involved in Dunlop v. Higgins ' was recognised by Cresswell, 
 J. upon the trial of the action in Duncan v. Topham' ; upon that occasion 
 he directed the jury that, if the letter accepting the contract was put into 
 the post office and lost through the negligence of the post office authorities, 
 the contract would nevertheless be complete ; and upon an application in the 
 same case, to make absolute a rule which had been obtained for a new trial, 
 tliougli the new trial was ordered upon other grounds, Wilde, C.J., and 
 Maule, J., expressed views to the same effect as the direction of Cresswell, 
 J. ; in that case the letter never reached the hands of the person to whom 
 it was addressed. 
 
 I proceed to consider the circumstances of ColsorCs Case ^, they were as 
 follows. On the 13th of February, 1867, the defendant sent an application 
 to the company, through the post, for an allotment of fifty shares, under- 
 taking by his letter to pay the sum of 21. per share on whatever number 
 should be allotted to him; on the 1.5th of the same month fifty shares 
 were allotted to him, and a letter informing him of such allotment was 
 posted to liis address, as given in his letter of application for shares, viz., 
 31, Charlotte Street, Fitzroy Square. 
 
 Now a letter of application for sliares, in a public company, expressed 
 in the usual form, must, I tliink, having regard to the usage in such 
 matters, be considered as authorizing the acceptance of the offer by a letter 
 through the post, as was expressed by Lopes, J., in the case now under 
 consideration; sucli would be the ordinaiy mode of transmission of an 
 
 ' 1 II. L. C. 381. 2 8 C. B. 22.5. - Law Kcp. 7 Ex. 108.
 
 CHAP, l] HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 153 
 
 allotment letter. The defendant however swore, and there wa.s no reason 
 to doubt the truth of his statement, that he never received the letter of 
 allotment ; that anotlier person of the same name lived opposite to him in 
 tlie same street : aliout that time the numbers in the street were changed, 
 his own being altered fi-om 31 to 87 ; and that several letters then sent to 
 liim had never reached him. On the 28th of February the plaintifl's, on 
 being informed that the letter of allotment liad not reached the defendant, 
 sent liim a duplicate, wliich he refused to accept ; the action was then 
 brought by the company to recover the 21. per sliare. Tlie jury found 
 that tlie letter of allotment was posted to the defendant on the 14th 
 of February but that he never received it, and that the second notice was 
 not sent in a reasonable time. The learned judge, Bramwell, B., there- 
 upon directed the verdict to be entered for the plaintifl's, but gave the 
 defendant leave to move to have it entered for himself on the authority 
 of Finucane's Case ' which had recently been decided by Lord Romilly. 
 A rule nisi was accordingly obtained, and cause was shewn on the 17th of 
 November, 1870, the Court being composed of the Lord Chief Baron and 
 Bramwell and Pigott, BB. Judgment was reserved, and on the 31st of 
 January, 1871, the rule was made absolute to enter the verdict for the 
 defendant. 
 
 The Lord Chief Baron, in the course of Iris judgment, expressed himself 
 as follows : " It appears to me that if one proposes to another by a letter 
 through the post to enter into a contract for the sale or purchase of goods, 
 or, as in this case, of shares in a company, and the proposal is accepted by 
 letter and the letter put into the post, the party having proposed to contract 
 is not bound by the acceptance of it until the letter of acceptance is 
 delivered to him, or othei-wise brought to his knowledge, except in certain 
 cases wliere the non-receipt of the acceptance has been occasioned by his 
 own act or default." Now, unless the proposition so put by the Lord 
 Cliief Baron is to be read with some qualifications, it can hardly be 
 considered as consistent with the decision in Dunlop v. Higgins ", as such 
 decision has ordinarily been understood. This view, however, taken by 
 him of that decision does not appear to be in accordance with tliat 
 generally taken ; for after alluding to the circumstances of Dunlop v. 
 Higgins ° he proceeded to express his entire concurrence with the decision 
 of the Court of Session and in the aflirmance of it by the House of Lords, 
 upon the ground that, in his opinion, the acceptance of the offer reached 
 Dunlop & Co. in time, and that the House of Lords had acted upon the 
 same view of the circumstances of the case ; the distinction which he 
 recognised between that case and the one then under consideration 
 consisted in this, that whereas the letter of acceptance in Dunlop v. 
 Higgins ^ was received by the party making the offer in due time, that in 
 Colso7i's Case ^ never reached its destination. Pigott, B., did not give a 
 separate judgment, but it was stated that he concurred in that of the Lord 
 
 1 17 W. R. 813. - 1 H. L. C. 381. ■< Law Kcp. 7 Ex. 108.
 
 1.54 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 Chief Baron. Bramwell, B., also commented upon tlie circumstances of 
 Dnnlnp v. Uiyijins ', and referred to several passages in the judgment of 
 Lord Cottenhaui, including those which I have quoted, and he then 
 expressed himself as follows : " It seems to me that the correct way to 
 deal with those expressions is to refer them to the subject-matter, and not 
 to consider them as laying down such a proposition as tlie plaintiffs have 
 contended for, but that when the post may be used between the parties it 
 must be subject to those delays which are unavoidable." It would appear, 
 then, that all the judges in the Court of Exchequer treated the case of 
 Dunlcip V. lliggins ' as one decided upon special circumstances, and as not 
 enunciating any general principle beyond what was necessary for dealing 
 with such circumstances. I am unable to concur in this view. It may be 
 that there were special circumstances in the case of Dunlop v. liirigins ' 
 sufficient to have justified the decision of the House, irrespective of tlie 
 application of the principle involved in the direction of the Lord Justice 
 General ; but the decision was not expressed to be based, and apparently 
 was not intended to be based, upon any such ground, but upon an appro- 
 val and of the direction of that learned judge. 
 
 After a careful consideration of the judgments of the Lord Chief Baron 
 and of Mr. Baron Bramwell, I can come to no other conclusion than that 
 the decision in Cohan's Case ^ is inconsistent with that of the House of 
 Lords in Dunlop v. Uiggins '. If I am riglit in this conclusion it is not 
 for me to choose between the two ; 1 am bound by the authority of the 
 decision of the House of Lords. 
 
 But I pass on to consider the circumstances of Harris' Case ", whicli 
 came before the Lords Justices in 1872. On the 5th of March, 1866, 
 Lewis Harris, of Dulilin, applied to the directors of the Imperial Land 
 Company of Marseilles, by a letter in the usual form, for an allotment of 
 200 shares, undertaking by his letter to accept that or any less number of 
 shares that might be allotted to him. The directors allotted to him 100 
 shares, and early on the morning of the 16th of March posted a letter to 
 him at his address, as given in his letter of application, which was 
 received by him at Dublin. He had, however, in the interval between 
 the posting and the delivery of the letter giving him notice of the allot- 
 ment, written to the directors withdrawing his application and declining 
 to accept any shares. Upon an order being made to wind up the company, 
 Sir. Harris was placed upon the list of contributories in respect of the 100 
 shares, and a summons having been taken out by him to have his name 
 removed from the list, such summons was dismissed by Malins, V.C. 
 From such dismissal Mr. Harris appealed, but the decision of the Vice- 
 Chancellor was upheld. In giving judgment James L.J., said that it 
 appeared to him that the contract was completed tlie moment the notice 
 of allotment was committed to the post, and a similar view was expressed 
 by Mellish, L.J., who, after referring to the decision of the Court of 
 
 ' 1 H. L. C. 381. = Law Rep. 6 Ex. 108. ^ Law Eep. 7 Ch. 587.
 
 CHAr. l] HOUSEHOLD FIRE INSURANCE COMPANY I'. GRANT. 155 
 
 Exchequer in Colson^s Case \ and stilting that he had great difficulty in 
 reconciling it ■with that of the House of Lords in Dunlop v. Ilu/ifins', 
 observed, with reference to the last mentioned case, that the real question 
 then before the House of Lords was, whetlier the ruling of the Lord 
 Justice General was correct, and that the House of Lords held that 
 it was. 
 
 It is doubtless true, as was observed by both the Lords Justices, that 
 the decision in Ilnrris C'ase^, was not necessarily inconsistent with that of 
 the Court of Exchequer in Colsoiis Case ', but it is, I think, clear that, 
 although the Lords Justices did not feel themselves called upon to express 
 any dissent from the decision of the Court of Exchequer, as it was not 
 necessary for the decision of the case before them that they should do so, 
 they by no means recognised the propriety of the distinction drawn by the 
 Court of Exchequer between Buiilop v. Higgins ' and Cohort's Case '. I 
 do not think it necessary to refer to Finuvane's Case * and other cases 
 decided by Lord Romilly, in which he held that the posting of a letter of 
 allotment which never reached its destination was not suiScient to consti- 
 tute the applicant a contributory, further than to observe that in Finur 
 cane's Case *, Dunlop v. Higgins ^, and Duncan v. Topham * were not cited, 
 and that in the others the circumstances were such that the Master of the 
 Eolls deemed himself justified in not following the decision in Dunlop v. 
 Higgins'. Indeed, in one of tliose cases, Hebb's Case', he distinctly 
 recognised the authority of tlie decision in Dunlop v. Higgins", which he 
 considered to have been decided upon the ground that the post office was 
 the common agent of both parties. For the reasons which I have assigned, 
 I am of opinion that the principle established by the decision of the House 
 of Lords in Dunlop v. Higgins' is appKcable to the case now under con- 
 sideration, and that the decision of Lopes, J., should be affirmed. I desire, 
 therefore, to add that I have felt myself bound by authority. My own 
 convictions are entirely in accordance with the principles which I consider 
 to have been established by authority ; and in saying this, I bear in' mind 
 as well the very forcible remarks made by the Lord Chief Baron and my 
 present colleague upon the subject of the mischievous consequences that 
 might ensue from an adoption of these principles in certain suggested 
 cases, as the equally forcible remarks made by Mellish, L.J., as to the like 
 consequences which would ensue in other cases if those principles were 
 departed from. 
 
 Bramwell, L.J. The question in this case is not whether the post 
 office was a proper medium of communication from the plaintiffs to the 
 defendant. There is no doubt that it is so in all cases where personal 
 service is not required. It is an ordinary mode of communication, and 
 every person who gives any one the right to communicate with him, gives 
 the right to communicate in an ordinary manner and so in this way and 
 
 1 Law Eep. 6 Ex. 108. « i h. L. C. 381. ' Law Rep. 7 Ch. 587. 
 
 * 17 W. E. 813. » 8 a B. 225. « Law Hep. 4 Eq. 9.
 
 156 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 to this extent, that if an offer were made by letter in tlie morning to a 
 person at a place within half an hour's railway journey of the offei'er, I 
 should say that an acceptance by post, though it did not reach the ofl'erer 
 till the next morning, would be in time. Nor is the question whether, 
 when the letter readies an offerer, the latter is bound and the bargain 
 made from the time the letter is posted or despatched, whether by post or 
 otherwise. The question in this case is difl'erent. I will presently state 
 what in my judgment it is. Meanwhile I wish to mention some elenien- 
 tary propositions wliich, if carefully borne in mind, will assist in the 
 determination of this case : 
 
 First. Where a proposition to enter into a contract is made and 
 accepted, it is necessary, as a rule, to constitute the contract that there 
 sliould be a communication of that acceptance to the proposer, per Brian, 
 C. J., and Lord Blackburn : Brogden v. Metropoliian Ry. Co. '. 
 
 Secondly. That the present case is one of proposal and acceptance. 
 
 Tliirdly. That as a consequence of or involved in the first proposition, 
 if the acceptance is written or verbal, i.e., is by letter or message, as a 
 rule, it must reach the proposer or there is no communication, and so no 
 acceptance of the offer. 
 
 Fourthly. That if there is a difference where the acceptance is by a 
 letter sent through the post which does not reach the offerer, it must be 
 by virtue of some general rule or some particular agreement of the parties. 
 
 1 2 App. Cas. at p. 692. The following is the passage referred to : — "But when you 
 come to the general proposition which Mr. Justice Brett seems to have laid down, that 
 a simple acceptance in your own mind, without any intimation to the other partj', and 
 expressed by a mere private act, such as putting a letter into a drawer, comijletes a 
 contract, I must say I differ from that. It appears from the Year Books that as long ago 
 as the time of Edward IV., Chief Justice Brian decided this very point. The plea of 
 the Defendant in that case justified the seizing of some growing crops because he said 
 the Plaintiff had offered him to go and look at them, and if he liked them, and would 
 give 2.S-. 6(;. for them, he might take them; that was the justification. That case is 
 referred to in a book which I published a good many years ago, Blackburn on Contracts 
 of Sale, and is there translated. Brian gives a very elaborate judgment, explaining tlie 
 law of the unpaid vendor's lien, as early as that time, exactly as the law now stands, 
 and he consequently says: "This plea is clearly bad, as yon have not shewn the pay- 
 ment or the tender of the money ; " but he goes farther, and says (I am quoting from 
 memory, but I think I am quoting correctly), "moreover, your plea is utterly naught, 
 for it does not shew that when you had made up your mind to take them you signified 
 it to the Plaintiff, and your having it in your own mind is nothing, for it is trite law 
 that the thought of man is not triable, for even the devil does not know what the 
 thought of man is; but I grant you this, that if in his offer to you he had said. Go and 
 look at them, and if you are pleased with them signify it to such and such a man, and 
 if you had signified it to such and such a man, your plea would have been good, 
 because that was a matter of fact." I take it, my Lords, that that, which was said 300 
 years ago and more, is the law to this day, and it is quite what Lord Justice Mellish in 
 Ex parte Harris accurately says, that where it is expressly or imphedly stated in the 
 offer that you may accept the offer by posting a letter, the moment you post the letter 
 the offer is accepted. You are bound from the moment you post the letter, not, as it is 
 put here, from the moment you make up your mind on the subject." En.
 
 CHAP. l] HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. 1.57 
 
 As, for instance, there might be an agreement that the acceptance of tlie 
 proposal may be by sending tlie article offered by the proposer to be 
 bought, or hanging out a flag or sign to be seen by the ofl'erer as lie goes 
 by, or leaving a letter at a certain place, or any other agreed mode, and in 
 the same way there might be an agreement that dropping a letter in 
 a post pillar box or other place of reception should suffice. 
 
 Fifthly. That as there is no sucli special agreement in this case, the 
 defendant, if bound, must be bound by some general rule which makes a 
 difference when the post office is employed as the means of communication. 
 
 SLxthly. That if there is any such general rule applicable to the 
 communication of the acceptance of offers, it is equally applicable to all 
 communications that may be made by post. Because, as I have said, the 
 question is not whether this communication may be made by post. If, 
 therefore, posting a letter which does not reach is a sufficient communica- 
 tion of acceptance of an offer, it is equally a communication of everything 
 else which may be communicated by post, e.g., notice to quit. It is 
 impossible to hold, if I offer my landlord to sell him some hay and he 
 writes accepting my offer, and in the same letter gives me notice to quit, 
 and posts his letter which, however, does not reach me, tliat he has com- 
 municated to me his acceptance of my offer, but not his notice to quit. 
 Suppose a man has paid his tailor by cheque or banknote, and posts a 
 letter containing a cheque or banknote to his tailor, which never reaches, 
 is the tailor paid ? If he is, would he be if he had never been paid before 
 in that way 1 Suppose a man is in tlie habit of sending cheques and bank- 
 notes to liis banker by post, and posts a letter containing cheques and 
 banknotes, which never reaches. Is the banker liable 1 Would he be if 
 this was the first instance of a remittance of the sort? In tlie cases I 
 have supposed, the tailor and banker may have recognised this mode 
 of remittance by sending back receipts and putting the money to the 
 credit of the remitter. Are they liable with that ■? Are they liable with- 
 out it 1 Tlie question then is, is posting a letter wliich is never received a 
 communication to the person addressed, or an equivalent, or something 
 which dispenses with it 1 It is for those who say it is to make good their 
 contention. I ask why is iti My answer beforehand to any argument 
 that may be urged is, that it is not a communication, and that there is no 
 agreement to take it as an equivalent for or to dispense with a communi- 
 cation. That those who affirm the contrary say the thing which is not. 
 That if Brian, C.J., had had to adjudicate on the case, he would deliver the 
 same judgment as that reported. That because a man, who may send a 
 communication by post or otherwise, sends it by post, he should bind the 
 person addressed, though the communication never reaches him, while he 
 would not so bind him if he liad sent it by hand, is impossible. There is 
 no reason in it ; it is simply arbitrary. I ask whether any one who thinks 
 so is prepared to follow that opinion to its consequence ; suppose the offer 
 is to sell a particular chattel, and the letter accepting it never arrives, is
 
 158 HOUSEHOLD FIRE INSURANCE COMPANY V. GRANT. [CHAP. I 
 
 the property in the chattel transferred 1 Suppose it is to sell an estate or 
 gi-ant a lease, is the bai-gain completed t Tlie lease might be such as not 
 to require a deed, could a subsequent lessee be ejected by the would-be 
 acceptor of the offer because he had posted a letter t Suppose an article 
 is advertised at so much, and that it would be sent on receipt of a post 
 office order. Is it enough to post the letter? If the word "receipt" 
 is relied on, is it really meant that tliat makes a difference ? If it should 
 be said let the ofierer wait, the answer is, may be he may lose his market 
 meanwhile. Besides, his offer may be by advertisement to all mankind. 
 Suppose a reward for information, information posted does not reacli, some 
 one else gives it and is paid, is tlie offerer liable to the first man 1 
 
 It is said that a contrary rule would be hard on the would-be acceptor, 
 who may have made his arrangements on the footing that tlie bargain was 
 concluded. But to hold as contended would be equally hard on the offerer, 
 who may have made his arrangements on the footing that his offer was 
 not accepted ; his non-receipt of any communication may be attributable 
 to the person to whom it was made being absent. What is he to do but 
 to act on the negative, tliat no communication has been made to him 1 
 Further, the use of the post office is no more authorized by the offerer than 
 the sending an answer by hand, and all these hardships would befall the 
 person posting the letter if he sent it by hand. Doubtless in that case he 
 would be the person to suffer if the letter did not reach its destination. 
 Why should his sending it by post relieve him of the loss and cast it on 
 the other party. It was said, if he sends it by hand it is revocable, 
 but not if lie sends it by post, which makes the difference. But it 
 is revocable when sent by post, not tliat the letter can be got back, but its 
 arrival might be anticipated by a letter by hand or telegram, and there is 
 no case to shew that such anticipation would not prevent the letter from 
 binding. It would be a most alarming thing to say that it would. That 
 a letter honestly but mistakenly written and posted must bind the writer 
 if hours before its arrival he informed the person addressed that it was 
 coming, but was wrong and recalled ; suppose a false but honest character 
 given, and the mistake found out after the letter posted, and notice that it 
 was wrong given to the person addressed. 
 
 Then, as was asked, is the principle to be applied to telegrams 1 
 Further, it seems admitted that if the proposer said, " unless I hear from 
 you by return of post the offer is withdrawn," that the letter accepting it 
 must reach him to bind him. There is indeed a case recently reported in 
 the Times, before the Master of the Rolls, where the offer was to be 
 accepted within fourteen days, and it is said to have been held that it was 
 enough to post the letter on the 14th, though it would and did not reach 
 the offerer till the 1.5tli. Of course there may have been something in 
 that case not mentioned in the report. But as it stands it comes to this, 
 that it an offer is to be accepted in June, and there is a month's post 
 between the places, posting the letter on the 30th of June will suffice.
 
 CHAP, l] HOUSEHOLD FIRE INSURANCE COMPANY v. GRANT. 159 
 
 though it does not reach till the 3 1st of July ; but that case does not 
 afl'ect this. There the letter reached, liere it has not. If it is not 
 admitted that " unless I hear by return the offer is withdrawn " makes the 
 receipt of the letter a condition, it is to say au express condition goes for 
 nought. If it is admitted, is it not what every letter says? Are there to 
 be tine distinctions, sueli as, if the words are " unless I hear from you by 
 return of post, ifec," it is necessary the letter should reach him, but " let 
 me know by return of post," it is not ; or if in that case it is, yet it is not 
 where there is an offer without those words. Lord Blackburn says tliat 
 Mellish, L.J., accurately stated that where it is expressly or impliedly 
 stated in the offer, " you may accept the offer by posting a letter," the 
 moment you post this letter the offer is accepted. I agree ; and the same 
 thing is true of any other mode of acceptance offered with the offer and 
 acted on — as firing a cannon, sending off a rocket, give your answer to my 
 servant the bearer. Lord Blackburn was not dealing with the question 
 before us ; there was no doubt in the case before him that the letter had 
 reached. As to the authorities, I shall not re-examine those in existence 
 before the British and American Telegraph Co. v. Colson^. But I wish to 
 say a word as to Dunlop v. Higgins ° ; the whole difficulty has arisen from 
 some expressions in that case. JNIr. Finlay's argument and reference to 
 tlie case when originally in the Scotch Court has satisfied me that Dunlop 
 V. Higgins^ decided notliing contrary to the defendant in this case. 
 Mellish, L.J., in Harris' Case^, says, "That case is not a direct decision 
 on the point before us." It is true, he adds, that he has great difficulty 
 in reconciling the case of the British and American Telegraph Co. v. 
 Culson ' with Dunlop) v. Higgins ^. I do not share that difficulty. I think 
 they are perfectly reconcilable, and that I have shewn so. Where a 
 posted letter arrives, the contract is complete on the posting. So where a 
 letter sent by hand arrives, the contract is complete on the writing and 
 delivery to the messenger. Why not? All the extraordinary and 
 mischievous consequences which the Lord Justice points out in Harris' 
 Case^ might happen if the law were otherwise when a letter is posted, 
 would equally happen where it is sent otherwise than by tiie post. He adds 
 that the question before the Lords in Dunlop v. Higgins^ was whether the 
 ruling of the Lord Justice Clerk was correct, and they held it was. Now 
 Mr. Finlay shewed very cleai-ly that the Lord Justice Clerk decided 
 nothing inconsistent with the judgment in the British and American 
 Telegraph Co. v. Colson '. Since the last case there have been two before 
 Vice-Chancellor Malins, in the earlier of which he thought it "reasonable," 
 and followed it. In the other, because the Lord Justices liad in Harris' 
 Case ' thrown cold water on it, he appears to have thought it not reason- 
 able. He says, suppose the sender of a letter says, " I make you an offer, 
 let me have an answer by return of post." By return the letter is posted, 
 and A. has done all that the person making tlie offer requests. Now that 
 1 Law Eep. 6 Ex. 108. = 1 H. L. C. 381. ■' Law Bep. 7 Ch. S'JG.
 
 160 HOUSEHOLD FIRE INSURANCE COMPANY ('. GRANT. [CHAP. I 
 
 is precisely what he has not clone. He has not let him " have an answer." 
 He adds there is no default on his part. Why sliould he be the only 
 person to suffer 1 Very true. But there is no default in the other, and 
 why should he be the only person to suffer 1 The only other authority is 
 the expression of opinion by Lopes, J., in the present case. He says the 
 proposer may guard himself against hardship by making the proposal 
 expressly conditioned on the arrival of the answer within a definite time. 
 But it need not be express nor within a definite time. It is enough that it is 
 to be inferred that it is to be, and if it is to be it must be within a reason- 
 able time. The mischievous consequences he points out do not follow 
 from tliat which I am contending for. I am at a loss to see how the post 
 office is the agent for both parties. What is the agency as to the sender ? 
 merely to receive 1 But suppose it is not an answer, but an original com- 
 munication. What tlien ? Does the extent of the agency of the post 
 office depend on tlie contents of the letter 1 But if the post office is the 
 agent of both parties, then the agent of both parties has failed in his duty, 
 and to both. Suppose the offerer says, " My ofter is conditional on your 
 answer reacldng me." Whose agent is the post office then 1 But how 
 does an offerer make the post office his agent, because he gives the offeree 
 an option of using that or any other means of communication. 
 
 I am of opinion that this judgment should be reversed. I am of 
 opinion that tliere was no bargain between these parties to allot and take 
 shares, that to make such bargain there should have been an acceptance of 
 the defendant's offer and a communication to him of that acceptance. 
 That there was no such communication. That posting a letter does not 
 differ fi'om other attempts at communication in any of its consequences, 
 save that it is irrevocable as between the poster and post office. The 
 difficulty has arisen from a mistake as to what was decided in Dunlop v. 
 Higgins ', and from supposing that because there is a right to have 
 recourse to the post as a means of communication, that right is attended 
 with some peculiar consequences, and also from supposing that because if 
 the letter reaches it binds from the time of posting, it also binds though it 
 never reaches. Miscliief may arise if my opinion prevails. It probably 
 will not, as so much has been said on the matter that principle is lost 
 sight of. I believe equal if not greater, will, if it does not prevail. I 
 believe the latter will be obviated only by the rule being made nugatory 
 by every pnident man saying, "your answer by post is only to bind if it 
 reaches me." But the question is not to be decided on these considerations. 
 What is the lawl What is the principle? If Brian, C.J., had had to 
 decide this, a public post being instituted in his time, he would have said 
 the law is the same, now there is a post, as it was before, viz., a communi- 
 cation to affect a man must be a communication, i.e., must reach him. 
 
 Judgment affirmed. 
 1 1 H. L. C. 381.
 
 CHAPTER IT. 
 
 FORM OF CONTRACT. 
 SECTION I. 
 
 CONTRACT UNDER SEAL. 
 
 STEFANOS XENOS AND ANOTHER .... Appellants 
 
 AND 
 FRANCIS D. WICKHAM Respondent. 
 
 In the House of Lords, June 25, 26, 1866, May 8, July 16, 1867. 
 
 [Reported in Law Reports, 2 English and Irish Appeals, 296.] 
 
 This was an appeal again.st a decision of the Court of Exchequer 
 Chamber', which (diss. Mr. Justice BlacJchuni and Mr Justice MeJlor) 
 had affirmed a decision of the Court of Common Pleas ^, in an action 
 between these parties on a time policy on a ship. 
 
 The Appellants are shipowners, carrying on business under the 
 name of tlie Greek and Oriental Steam Navigation Company, and as 
 such were the owners of the ship Leonidas. The Respondent is tlie 
 chairman and representative of the Victoria Fire and Marine Insurance 
 Company. The declaration alleged, in the usual form, that the Plaintiffs 
 caused their vessel to be insured by this company for the space of 
 twelve months, from the 25th of April, 1861, to the 24th of April, 
 1862, on a policy valued at £1000, upon a ship valued at £13,000, and 
 the loss was alleged to have occurred by perils of the sea. There was 
 also a count in trover for the policy. 
 
 The Defendant pleaded several pleas, some of which alone are 
 material. The first denied the insurance as alleged; the fourth stated 
 that after the making of the policy the same remained, with the 
 Plaintiffs' consent, in the hands of the Defendant, and whilst it so 
 remained, and before the loss, the Plaintiffs requested the Defendant, 
 for the purpose of putting an end to the policy, to cancel the same and 
 make a return to the Plaintiffs of the pi'emium ; that, in compliance with 
 
 1 14 C. B. (n.s.) 435. - 1.3 C. B. (n.s.) 381. 
 
 F. 11
 
 102 XENOS V. WICKHAM. [CHAP. 11 
 
 sucli request, and before tlie loss, the Defendant did cancel the policy, and 
 thereby put an end to the risk, &c. To the count in trover the 
 Defendant pleaded not guilty, and not possessed. 
 
 Issue was taken on all these pleas, and the cause was tried before 
 Lord Chief .Justice Erlfi, when it appeared that on the 25th of April, 
 1861, the Plaintifls employed Mr. Lascaridi, an insurance broker, to 
 effect for them a policy on the ship Leonidas for £2000, at .£8 8s. 
 per. cent., from the 25th of April to the 25th of October. In the case of 
 private underwriters at Lloyd's, it is customary to have only one slip, 
 which is signed by the different underwriters for the amounts for which 
 they are willing to undertake the insurance. In the case of insurance 
 companies a separate slip is prepared by the brokers of the assured for 
 eacli company, and the policy is afterwards prepared and filled up from 
 the slip by the officers of the company, and is kept by the company until 
 sent for by the assured or his broker. 
 
 In accordance with the usual practice, Lascaridi prepared for the 
 Respondent's company a slip embodying the terms of the proposed 
 insurance, and got it initialed by Mr. E. J. Sprange, a clerk, of tlie 
 company, for the sum of £2000. This was left at the office of the 
 company in order that the policy might be made out. Before the policy 
 was made out, the Plaintiffs sent to Lascaridi a letter, dated 29th of 
 April, 1861, desiring him to "cancel Leonidas insurance, and insure 
 the same for all the year and for all seas at £10 10s. per cent." On the 
 30th of April Lascaridi called at the Respondent's office, and stated that 
 he did not wish the policy already mentioned to proceed, but desired to 
 effect another. Tlie slip for the insurance for £2000 for six months was 
 then destroyed, and another slip was prepared by him, and initaled by the 
 Respondent's clerk, "J". J. S.," on the Leonidas for £1000 for twelve 
 month.?, from the 25th of April, 1861, on "hull, stores, and machinery, 
 valued at £13,000." On the 1st of May Lascaridi sent to the Plaintiffs 
 an account debiting them with the sum of £338, as payable by them 
 in respect of insurances on the Leonidas, and drew on them, as of that 
 date, for that sum at three months. They accepted the bill, and when 
 they did so Lascaridi told them that the policy would be ready in a day 
 or two. This bill was paid at maturity. In the course of a few days 
 afterwards a policy in the usual form of the company was filled up from 
 the slip, and was dated the 1st of May, 1861. 
 
 The custom, as between insurance companies and insurance brokers, 
 is for the companies to give credit to the brokers for the premiums, 
 debiting them in account with the amount of such premiums, and 
 when insurances are effected (as this was) for cash, or on cash account, 
 all premiums for insurances effected during each month are payable on the 
 8th of the succeeding month. Just before the expiration of this credit a 
 debit note is sent to the broker, with a statement of the amount of the 
 premiums due, less a discount and a brokerage at 15 per cent. On the
 
 C!HAP. ll] XENOS r. WrcKIlAM, 163 
 
 Sth of June ii debit iioto was sent from the Respondent's office to that of 
 Lascaridi. On its being presented, Lascaridis clerk said that no 
 premium was due, and, upon a second messenger being sent with the 
 policy, which was expressed to be duly " signed, sealed, and delivered," 
 and the debit note, the clerk repeated the statement, and said tliat tlie 
 policy ought not to have gone forward. In the course of the day one of 
 the clerks of Lnscnridi called at the office of the company, and said that 
 the policy had been put forward in error, and requested that it should be 
 cancelled. A memorandum of cancellation was thereupon indorsed on tlie 
 policy in these terms : " Settled a return of the whole premium on 
 the within policy, and cancelled this insurance, no risk attaching tliereto." 
 This memorandum was signed by two directors, witnessed, and registered 
 in the regular way. The debit against Lascaridi for the premium was 
 cancelled, but he was charged with the stamp, and the policy was lianded 
 to his clerk, with the memorandum of cancellation thereon, that lie 
 might, if he could, obtain from the stamp office a return of the stamp 
 duty. On the morning of the 2nd of September, 1861, Lascaridi' s clerk 
 called at the office of the company with tlie policy, said that the 
 cancellation had been made by mistake, and wished the policy to be 
 reinstated. He was informed that if the ship was safe, and not in the 
 Baltic, there would be no objection, and he was requested to call again for 
 an answer. At twenty minutes past eight o'clock on the morning of that 
 day intelligence, by telegram, had been received at Lloyd's, stating that 
 the Leonldns was stranded on the Nervo, but this intelligence was not 
 known to the Respondent till three o'clock in the afternoon of that day. 
 The reinstatement of the policy was then refused. It was admitted that 
 the Appellants liad not, in fact, authorised the cancellation of the policy, 
 nor did they ever receive back from Lascaridi any part of tlie premium, or 
 any credit for the same. 
 
 The Lord Chief Justice, on these facts, directed a verdict for the 
 Defendant, but reserved leave to the plaintifls to move to enter a verdict 
 for them if the Court should be of opinion that the policy was binding on 
 the company, and had been cancelled without authority. A rule to that 
 effect having been obtained, it was, after argument, discharged, and this 
 decision was confinned on appeal to the Exchequer Cliamber. The 
 present appeal was then brought. 
 
 The Judges were summoned, and Lord Chief Baron Pollock, Mr. 
 Justice Willes, Mr. Justice Blackburn, Mr. Justice Mdlor, Mr. Baron 
 Piyotl, and Mr. Justice Smith, attended. 
 
 Sir George Honyman, Q.C., and Mr. Watkin Wlllirims, for the 
 Appellants : — 
 
 Tlie judgment in the Court below was, that there never was a 
 complete and binding contract between these parties. That proposition 
 
 11—2
 
 1G4 XENOS V. WICKHAM. [CHAP. II 
 
 cannot be sustained. Tlie policy was treated, except by Lord Chief 
 Baron Pollock, as a common law deed, and it was supposed to require 
 actual delivery to make it effectual. Formal delivery to the Appellants, 
 or even to a particular person on their behalf, is not essential for its 
 validity: Comyji's Digest'; Rolles Abridgment^ In Exton v. Scott^, 
 the grantor of a mortgage for years retained the deed iii his own 
 possession, and it was only discovered among his papers after his death, 
 yet it was held not to be an escrow, but a deed, and took effect from 
 its esecution, and was good against his creditors. In Hall v. Palmer'^ 
 a bond executed for tlie benefit of a woman with whom the grantor had 
 cohabited, though retained in the hands of the testator's solicitor, and 
 quite unknown to her till his death, was declared by the Vice-Chancellor 
 Wiyraiii to be valid for her benefit. So in Fletcher v. Fletcher'', where a 
 man had executed a deed in favour of his illegitimate son, though 
 unknown to the son, and the deed was kept in the grantor's possession, 
 and not discovered until after his death, it was held to entitle the son to 
 sue his estate for the amount. Doe d. Pichards v. Lewis" is to the same 
 eflfect ; and in Kidner v. Keifh\ a deed which, by arrangement, was to be 
 executed in duplicate, was executed by the grantee, but not attested, and 
 was sent in that state to the solicitor of the grantors to procure their 
 execution, and they accordingly signed and delivered it ; this was lield to 
 be sufficient, and the whole estate passed, the arrangement not rendering 
 the deed a mere escrow till the duplicates should have been interchanged. 
 In tlie case of a corporation, the act of putting the common seal to the 
 deed is equivalent to the delivery. The policy here was treated by the 
 parties themselves as having been duly delivered. It professes to hav^e 
 been " signed, sealed, and delivered " in the presence of the resident 
 secretary, by two directors of the company, who declare themselves 
 to have acted in accoi'dance with the provisions of the deed of settlement 
 of the company. Nothing more was required to make it a perfect 
 and binding instrument. The retention of the policy by the officer of the 
 insuring company, after it had been fully executed, would not prevent it 
 from being complete. Doe d. Gamons v. Knight^ is not distinguisliable 
 from the present. That case established that the execution of the 
 deed and the formal act of delivery, by putting the hand on the seal, and 
 saying, " I deliver this as my act and deed," made it binding as such, 
 although the grantor, in fact, retained it in his custody, and did not 
 deliver it to the party who was to take, or to any one for his use. 
 
 As to the liability of tlie broker, it is clear that if he makes himself 
 liable for the premiums, money had and received can be maintained on 
 the policy, although in fact the premiums have not been paid at the time 
 of the loss: Power v. Butcher^; Arnoidd on Marine Insurance'". If 
 
 •Fait. A. 2. 2 rait. J. 1. 3 6 Sim. 31. ■• 13 L. J. (n.s.) Ch. 352. 
 
 5 14 Ibid. CB. 6 11 C. B. 1035. 7 15 C. B. (n.s.) 35. 
 
 8 5 B. A C. G71. ■< 10 B. & C. 329. '» Vol. i. p. 105.
 
 CHAP. Il] XENOS V. WICKHAM. 165 
 
 otlierw-ise, it would follow that, should the ship be lost between the day of 
 the execution of the policy and that for the payment of the premium, 
 there would be no insurance, a proposition which could never be 
 admitted. 
 
 The foi-mal handing over of the policy of insurance is not necessary, for 
 a policy is not Like a bill of exchange, wliich may be revoked at any time 
 before it is delivered ; besides which, as Lord Cnmphdl observed in 
 Humplirey v. Dale^, these matters must be looked at not solely according 
 to the habits of lawyers, but with reference also to the usages and 
 concerns of trade. Here all was done according to those usages, and 
 it cannot be necessary to the validity of a policy of insurance that it 
 should be obtained by the assured the moment the slip is signed. As 
 soon as the slip was signed here the contract was complete, and the 
 slip was in truth an agreement between the Plantiffs and the Respondent, 
 and not between the broker and the Respondent. 
 
 Then, as to the question whether, if the policy was completed, the 
 broker had not, so far as the Respondent was concerned, authority to 
 cancel it, and whether he had actually cancelled it. The Plaintiffs had 
 never authorized the cancellation ; that was admitted in the special case. 
 The clerk had no right, without their authority, to cancel it. Lnscaridi 
 had never given him any authority to do so ; and Lascaridl himself not 
 having received authority from the Plaintiffs to cancel the policy, possessed 
 no power to give him any. The person who is authorized to effect a policy 
 does not thereby acquire authority to cancel it. The case states that the 
 course wth insurance companies is for the broker to prepare for each 
 a slip, and the policy is afterwards filled up from that slip by the ofiicer.s 
 of the company, and is kept by the company until sent for by the 
 assured or his broker. That very usage assumes that the policy may 
 continue with the insuring company, but yet the contract will be complete. 
 The mere keeping possession of the policy, even if it had still remained in 
 the possession of tlie company, which it did not, would, therefore, have 
 amounted to nothing ; but, in fact, the actual possession remained with 
 the broker, who must be treated as having held it as the agent of his 
 principals. The general authority of a broker is stated in Story on 
 Agency^, where it is shewn^ that though the broker, if the policy remains 
 in his hands, may have, incidentally, authority to receive paj'ment on a 
 loss, he will not have authority to receive payment except in money. It 
 is clear, therefore, that his authority is restricted in its nature. The policy 
 here was completely effected, and what was afterwards done was null and 
 void. The contract was complete when the slip was signed. The 
 Respondent thereby undertook the risk. [Lord Cranwortii : — If the 
 Respondent had agreed to execute a policy, but had not executed it, 
 could there have been an action for not doing so ■?] There might have 
 lieen but for the stamp laws : they would prevent the remedy on such a 
 1 7 E. & B. 278. - S. 5S. ■' S. 103, lOU.
 
 166 XENOS V. WICKHAM. [OHAP. II 
 
 contriict, for the slip is not stamped, and so there would not have Leen 
 sufficient legal e\idence of it. [Lord C'ranworth : — Was there not here 
 a cancellation indorsed on the policy before there was anything which 
 amounted to a delivery of it by the parties to be made liable on it ?] 
 That depends on the view which the House may take of the facts of the 
 case, and of their legal eflect. The Plaintitis submit that there was here 
 a complete delivery — that everything was really completed on the 1st of 
 May, there were no terms to be considered, or added, or rejected, the 
 execution of the policy and its delivery were perfect, and there had been 
 nothing since which could impeach the validity of the contract : Rkhjivay 
 V. Wharton^, where Fowle v. Freeman' was adopted. 
 
 Mr. Bovill, Q.C., and Mr. Archibald, for the Defendant :— 
 
 There was no policy here under the hands and seals of the company at 
 the time of the loss. The declaration alleged the existence of a policy of 
 insurance, purporting thereby to bind the company to certain things. 
 There was nothing to sustain that allegation. Payment of the premiums 
 was to be made by the Plaintiffs through their agent, Lascaridi. The bill 
 to make that payment was drawn in May, it had four months to run, and 
 the date at which it was to become payable was actually subsequent to 
 the date at which the ship was lost, and was long subsequent to the time 
 at which the policy had been repudiated. The Respondent never received 
 any payment — the broker was, indeed, at one time debited to him in the 
 books of the company, but that was nothing without the broker's assent ; 
 and so far from giving that assent, he denied all liability to pay the 
 premium, and stated that the policy ought not to have gone forward. 
 That occurred on the 8th of June ; and as the underwriter always looks to 
 the broker, the policy then came to an end. A memorandum of cancella^- 
 tion was made on the policy, and though the policy was left with the 
 broker, it was left not as a delivery of it, as a policy, to him, as the broker 
 for the assured, but merely to enable him to get a return of the stamp 
 duty. This, so far from being an acknowledgment of liability, was a 
 distinct declaration that no liability existed. The broker was the avowed 
 agent of the Plaintiffs, and they were bound by his acts. Nothing 
 farther occurred till the vessel was lost. The Defendant's company was 
 not a corporation, but even if it had been, that would not have made the 
 affixing of the seal to the policy binding on the company, unless that act 
 had been done 'with a distinct intent to that effect : I'Ae Derby Canal 
 Company v. Wilmot^. Nothing was done here which would bring the 
 case within Doe d. Gartions v. Knight', where there had been a formal 
 aflixing of the seal, and a formal delivery of the document as the deed of 
 the party. As to the delivery of a deed, it is said in the Touchstone ' : — 
 " The delivery of a deed as an escrow is said to be where one doth make 
 
 ' 6 H. L. C. 238. ■- 9 Ves. 351. ' 9 East, 360. 
 
 * 5B.& C. 671. ■' Ch. 4, p. 58.
 
 CHAP. Il] XENOS r. WICKHAM. 1G7 
 
 and seal a deed and deliver it unto a stranger until certain conditions be 
 performed, and then to be delivered to him to whom the deed is made to 
 take effect as his deed." Here it was only proposed to be delivered, and 
 on that proposal it was repudiated. In truth, it never was delivered, and 
 has never been in the possession of the Appellants as a deed accepted by 
 them. That acceptance was necessary to make it binding on the insurers, 
 for the Appellants were at liberty, up to the last moment, to object to the 
 terms of the deed and to repudiate it. In I'hoinpson v. Leach', three out 
 of four Judges were of opinion, against Vetitris, that where there had 
 been a surrender, though formally executed by some parties, if not agreed 
 to by the surrenderee it did not operate as to him. Viner' is to the same 
 eflect ; and in Townson v. TickeW a de^•isee in fee was allowed to disclaim 
 by deed without matter of record. Here the policy was never intended to 
 be absolute till accepted by the other party, and by him it was repudiated 
 and rejected. 
 
 The writing of the terms on the slip was not all that was necessary to 
 constitute the contract. The premium was to be paid, and the policy was 
 to be accepted. Neither of these things was done. Under such circum- 
 stances, tliB analogy to a bill of exchange is good, and the consideration 
 not being paid, and the instrument not being delivered, no liability can 
 possibly arise upon it. So in the case of an arbitration. The appointment 
 of an arbitrator is not all that is necessary to bind the parties. It 
 cannot, therefore, be argued that the signing and sealing of the policy 
 rendered the policy completely binding on all parties. The acceptance of 
 it would have made it binding — that acceptance was refused. The terms 
 of the proposed contract were not adopted by the Appellants, and they, 
 not having accepted it, cannot now claim the advantage of it. 
 
 Sir G. Honyvxan, in reply : — 
 
 Payment in account is, in these matters, according to the practice in 
 London in such cases, equivalent to actual payment. The broker here did 
 not refuse the policy by the authority of the Plaintiffs, and his refusal 
 without their authority had no effect. It was executed completely as a 
 policy, and being so, delivery and acceptance of it were not necessary to 
 complete its validity. 
 
 The following question was put to the Judges : — 
 
 "Whether, on the facts stated in the .special case, the Victoria Fire 
 and Marine Insurance Company was, wlien the ship Leonidas was lost, 
 liable as insurer to the Plaintiffs on the policy, or alleged policy, in the 
 pleadings mentioned ? It is to be assumed that the ship Leonidas was 
 totally lost on the 1st of September, 1861." 
 
 1 2 Ventr. 198. This judgment was affirmed in the King's Bench, 3 Mod. 2'JG, but 
 is said (2 Ventr. 208) to have been reversed in the House of Lords. 
 - Abr. Faits, K. pi. 12. » 3 B. & A. 31.
 
 168 XENOS V. WICKHAM. [CHAP. 11 
 
 Mr. Justice Smith : — 
 
 My Lords, — I answer the question of your Lordships in the negative, 
 on the ground that there never was, as it seems to me, a comj^lete and 
 available contract of insurance. 
 
 I assume' it to be clear that the slip does not create a valid contract of 
 insurance, and that it is only of avail as a proposal, or an order for a 
 complete contract or poUcy of insurance. I apprehend it to be equally 
 clear that the contract is not complete until the policy is executed, and 
 delivered to and accepted by the assured, or some agent for him. This 
 policy, altliough executed, was not in fact delivered out of the office of the 
 Respondent, either to the assured or to his broker, Lascaridi, who had 
 ordered it, and whilst it lay in the office the intended insurance was, by 
 the broker, put an end to, on the ground that it had been put forward in 
 mistake. I assume, in favour of the Appellants, that if the contract of 
 insurance had been complete, Lascaridi had no authority to rescind the 
 contract ; but I assume also, in favour of the Respondent, that, whilst it 
 was incomplete, Lascaridi had authority to intercept its completion. 
 
 Tlie whole case, tlierefore, is reduced to the question, which is mainly 
 one of fact, whether, after the policy was executed, and before it came to 
 the hands of the assured or his broker, the contract was perfected. 
 
 The Appellants' case, on this cardinal point, wholly rests on the 
 assumption that Lascaridi liad made the officers of the company his agents 
 to accept the delivery of the policy on his behalf. I think this is an 
 assumption which is not warranted by the facts of the case. It arises 
 from the very nature of the transaction that the person intending to 
 insure, or his broker (when he acts through a broker), has a right to see 
 the terms of the policy, and to object to them, if he thinks fit. This 
 right may, of course, be delegated by the person intending to insure, and, 
 I will assume, by his broker also ; but it seems to me that clear evidence 
 of such delegation is necessary, and the person intending to insure cannot, 
 I think, with reason, be presumed to have delegated it to the insurers, 
 from the fact that the policy was left in the office of the company, and 
 not sent for ; and yet such a presumption must be made if the argument 
 for the Appellants is to prevail. The right to object to the terms of the 
 instrument, which may obviously be of the utmost importance, would if 
 this presumption is made, be gone as soon as the directors have executed 
 the policy and handed it to their own clerks. 
 
 In the result, I tliink that the assumption on which the Appellants' 
 case rests is not warranted by the evidence ; and I confess it seems to me 
 that consequences full of real danger to the interests of persons intending 
 to insure would follow from a rule founded on such an assumption. I 
 agree with my learned brothers, who think that it is better to adhere to 
 plain inferences of fact, than to attempt to remedy the inconveniences of a 
 negligent mode of doing business by making the facts bend to the 
 exigencies of the negligence.
 
 CHAP. Il] XENOS II WICKHAM. 1G9 
 
 Mr. Baron Pigott : — 
 
 My Lords, — In answer to your Lordships' question, viz. " Wliether, 
 on the facts stated in the special case, tlie Victoria Fire and Marine 
 Insurance Company/ was, when tlie sliip Leonidas was lost, on tlie 1st of 
 September, 18G1, liable as insurer to the Plaintiffs on the alleged policy in 
 the pleadings mentioned," I answer that, in my opinion, the company was 
 so liable. 
 
 Tlie facts are very fully and accurately set forth in the judgment 
 delivered by Mr. Justice Blackbm-n, in whicli judgment I entirely agree. 
 It is unnecessary for me to do more than refer to the more prominent 
 ones in stating the grounds of my opinion. 
 
 That opinion is based upon two considerations. First, I think tJiere 
 was a perfect and binding contract of insurance between tlie parties, 
 dated on the 1st of May ; and, secondly, that it was never cancelled or 
 made void as between the Appellants and the Respondent. 
 
 The whole difference between the parties has obviously arisen from the 
 fraudulent conduct of Lascaridi, the Plaintiffs' broker ; but it is equally 
 clear, I think, that they are not to be held responsible for, nor ought their 
 rights to be affected by, it. The authority with which Lascaridi was 
 invested by the Plaintiffs was that of a broker employed to effect an 
 insurance in the ordinary manner, with this additional circumstance only, 
 tliat after he had bespoken the policy, and before it was filled up from the 
 slip, lie had express authority to procure an alteration in the terms of 
 insurance. To that alteration the Defendant acceded, and thereupon a 
 second slip was initialed by him for tlie insurance in question (the former 
 slip being destroyed). 
 
 The case states what is the course of proceeding where, as in this 
 case, insurance companies become the insurers. It is, that " a separate 
 slip is prepared by the broker of the assured, and the policy is afterwards 
 prepared from it by tlie company, and is kept hi/ them uiitil sent for by the 
 assured or his broker." A separate slip was in fact so prepared for this 
 policy, and was left by Lascaridi at the Defendant's office, in order that a 
 policy might be made out in the usual course by the Defendant. Then, 
 with regard to the premiums, it is the custom for insurance companies to 
 give credit to the brokers for them, and to debit them in account. This 
 was done in the books of Defendant on the 1st of May, the day of signing 
 the slip for this policy. On the same day Lascaridi sent to the Plaintiffs 
 (his principals) an account in which lie debited them witli the premium 
 and duty, and he also drew upon them at the same time for the amount. 
 This draft was accepted by Plaintiffs, and was paid at maturity. When 
 they accepted this bill they were told by Lascaridi that the policy woukl 
 be ready in a day or two. In a few days afterwards, a policy in the form 
 usually adopted by the Defendant's company was filled up from the last 
 slip, and was duly executed by two directors of the company. 
 
 It bears date on the 1st of May ; it purports to have been signed,
 
 170 XENOS V. WICKHAM. [CHAP. II 
 
 sealed, and delivered in the presence of a witness ; it was therefore in form 
 complete. In that state it continued in the custody of tlie Defendant 
 until the 8th of June, when the Defendant sent a debit note for the 
 premium and stamp to Lascaridis office. At the instance of Lascaridi 
 the Defendant was induced to cancel the policy, on the representation that 
 it had been "put forward in error." Tliis (as we now know) was a false 
 statement on the part of Lascaridi. It is on the circumstance of the 
 policy remaining in the hands of the Defendant, as above stated, that the 
 question depends, whether the transaction constituted a complete contract 
 in law and fact, or not. I am of opinion that it was complete. 
 
 What inference might have been drawn from the fact of its so remain- 
 ing if there were no explanation about it, it is unnecessary to consider ; 
 for we have the reason given ; and that reason is, not that it waited any- 
 thing to be done upon it by the Defendant, or to be assented to by the 
 Plaintiffs, but that it was there only till sent for by the assui-ed or his 
 broker, or, in other words, that it remained there according to the trade 
 usage or by tacit understanding. This reason necessarily implies that in 
 all other respects it was a completed transaction. But farther, it is plain 
 that the formal assent of the Plaintiffs was not wanting to any of the 
 terms of the policy, for that was evidently intended to be, and accordingly 
 was, made out in the Defendant's usual form, filled up with the particulars 
 from the slip. But farther, the Defendant acted upon the policy as a 
 perfected transaction, when, on the 8tli of June, he demanded payment of 
 the premium for which he had given credit to the broker. In the face of 
 this demand, I confess it seems startling that the Defendant can be heard 
 to say that there was no complete contract subsisting at that period. It 
 was in form complete, and was shewn, by the conduct of all the parties to 
 it, to be believed and intended by them all (apart from Lascaridis fraud) 
 to be also completely in operation. 
 
 It seems, therefore, to be reduced to this, viz. : Was it essential that 
 the deed should be given out of the Defendant's possession in order to 
 its perfect delivery as an operative instrument ■? I know of no such 
 necessity in law or good sense. 
 
 Sheppard, in his Touchstone, writing of the requisites of a good deed, 
 treats, fifthly, of delivery as a matter of fact to be tried by jurors', and by 
 the whole context shews that it is a question of intention. He after- 
 wards^ says, that " Delivery is either actual, i.e., by doing something and 
 saying nothing, or else verbal, i.e., by saying something and doing 
 nothing, or it may be by both ; and either of these may make a good 
 delivery and a perfect deed." 
 
 Doe d. Garnons v. Knight^ is an authority most satisfactory on tliis 
 
 subject, and it is only necessary to quote one passage from the judgment 
 
 of the Court as delivered by Mr. Justice Bayley. He says : " Where an 
 
 instrument is formally sealed and delivered, and there is nothing to 
 
 1 Vol. i. C. 4, p. 54. = Ibid. p. 57. ^ 5 b. & C. 692.
 
 CHAP. II] XENOS V. WICKUAM. 171 
 
 qualify the delivery but the keeping the deed in the hands of the 
 executing party, nothing to shew that he did not intend it to operate 
 immediately, it is a valid and effectual deed, and the delivery to the party 
 who is to take by it, or to any person for his use, is not essential." This 
 passage seems to be exactly applicable to the facts of the present case, 
 with this addition, tliat there is hei-e not only nothing to qualify tlie 
 delivery, but, as above suggested, much to shew that the Defendant did 
 intend it to be unqualified, and a deed in full operation. 
 
 The only remaining question which could arise, viz., whether the 
 Plaintiffs were bound by the fraudulent conduct of Lascaridi in procuring 
 the cancellation of the policy, was not much urged at your Lordships' bar, 
 although it had been relied upon at Nisi Prius and in the Court of 
 Common Pleas. It is a proposition clearly not sustainable. The act was 
 without authority, express or implied ; and it is enough to say upon it 
 that Lascaridi was the broker employed to procure a policy, and from 
 that employment it is impossible to imply an authority to cancel it. 
 Then he certainly had no express authority, as is admitted in the special 
 case. 
 
 I therefore answer your Lordships' question in fa\'our of the Plaintiffs, 
 and in the affirmative. 
 
 Mr. Justice Mellor : — 
 
 My Lords, I answer the question put by your Lordships to the Judges 
 in the affirmative. I carefully attended to the arguments urged by the 
 learned counsel who appeared for the parties in this case at the bar of 
 your Lordships' House, but I confess that the observations then addressed 
 to your Lordships did not affect the conclusion at which I arrived when 
 the case was heard by the Judges in the Court of Exchequer Chamber. 
 I do not ventui'e to repeat the observations which I then made, but I 
 humbly refer your Lordships to the judgment which was then read for me 
 by my brother Blackburn. 
 
 My judgment depends upon the facts which I consider to be admitted 
 by the case, viz., that the policy in question was prepared by the 
 Defendant in conformity with the instructions of the Plaintiffs, given 
 through tlieir broker, Lascaridi; that by the mode of dealing between 
 the Plaintiffs' broker and the Defendant, the amount of the premium and 
 the stamp must, as against the Defendant, be treated as paid ; that the 
 policy was duly executed and delivered as a deed by the Defendant, who 
 did everything that he intended to do to complete such execution and 
 delivery, and that it was merely kept in his custody until called for by 
 the assured or their broker. The Plaintiffs, as I think, were bound by it, 
 because it was prepared in conformity with their instructions. The 
 Defendant was bound by it, because he had accepted the terms and mode 
 of payment of the premium and stamp, and acted upon the instructions of 
 the Plaintiffs, and had done c\ci-ything which he intended to do Ijy way
 
 172 XENOS V. WICKHAM. [CHAP. II 
 
 of execution and delivery of the policy as .a deed, and retained it only 
 for safe custody until sent for liy tlie assured in the ordinary course of 
 business. 
 
 Mu. Justice Blackbukn : — 
 
 I answer your Lordsliips' question in tlie affirmative. Two questions 
 are involved in your Lordships' question. First, whether tlie policy 
 before tlie 8tli of June was so executed as to bind the Defendant's 
 company to the Plaintiffs ; second, whether the transaction between the 
 Defendant's company and Lascandi (the PlaintiflFs' broker) operated so as 
 to release the Defendant from the obligation he had contracted to the 
 Plaintifls, supposing the policy to have been so executed. 
 
 I liave already, in the judgment I delivered in the Court below, 
 expressed the reasons for my opinion at length'. And as I have not been 
 induced, by anything I have heard at your Lordships' bar, to alter the 
 opinion I then expressed, 1 think it better to refer your Lordships to that 
 printed opinion than to repeat the opinion I there gave. 
 
 I have had an opportunity of perusing the opinions of my brotliers 
 Willes and Smith, and, if I understand them rightly, they agree with me 
 in thinking that if the policy was binding before the 8th of June, what 
 occurred subsequently would not discharge the company. I shall, there- 
 fore, say nothing more on that branch of the question. 
 
 As to the other branch, I should wish to call your Lordships' attention 
 to what I think are the real points in controversy. They are, I think, 
 two ; one of fact, the other of law. 
 
 The question of fact is, I think, this : Was the poKcy really in fact 
 intended by both sides to be finally executed and binding from the time 
 when the directors of the Defendant's company atfixed tlieir seals to it, 
 and left it in their oflice ; or was it, in fact, intended that the assured or 
 their brokers should exercise a subsequent discretion as to whether they 
 ^ould accept it or not. 
 
 If I thought that the parties did not in fact intend it to be then 
 finally binding, I do not think there would be any magic in the law to 
 make it binding contrary to their intention; but I submit to your 
 Lordships that the statements in the case as to what is stated to be 
 " always " the practice, and the statements there as to what was done in 
 this particular case, shew that the intention of both parties was, that the 
 policy, when drawn up by the company in confoi-mity with the instruc- 
 tions in the advice slip sent in by the broker, should be finally binding as 
 soon as executed by the officers of the company. It was not intended" by 
 either side that anything more should be done, but that the policy from 
 that time should be bincUng, and should lie in the company's office as the 
 property of the assured till sent for by them, and then be handed over to 
 their messenger. 
 
 ' 13C. B. (N.s.) 451.
 
 CHAP. Il] XENOS ('. WICKHAM. 173 
 
 It seems that some of the Judges take a ditl'erent view of the fact, and 
 think it really was intended that the policy should not be tinally binding 
 till something more was done by the assured. Your Lordships will 
 decide which is the true view of the facts. 
 
 Then, assuming that the intention really was that the policy should be 
 binding as soon as executed, and should be kept by the company as a 
 baillee for the assured, the question of law arises, whether the policy could 
 in law be operative until the company parted with the physical possession 
 of the deed. 
 
 I can, on this part of the case, do little more than state to your 
 Lordships my opinion, that no particular technical form of words or acts 
 is necessary to render an instrument the deed of the party sealing it. 
 The mere affixing the seal does not render it a deed ; but as soon as tliere 
 are acts or words sufficient to shew that it is uatended by the party to be 
 executed as his deed presently binding on him, it is suificient. The most 
 apt and expressive mode of indicating such an intention is to hand it 
 over, saying: "I deliver this as my deed;" but any other words or acts 
 that sufficiently shew that it was intended to be finally executed will do 
 as well. And it is clear on the authorities, as well as the reason of the 
 tiling, that the deed is binding on the obligor before it comes into the 
 custody of the obligee, nay, before he even knows of it ; though, of course, 
 if he has not previously assented to the making of the deed, the obligee 
 may refuse it. In Butler and Baker's Case\ it is said: "If A. make an 
 obligation to B., and deliver it to C. to the use of B., this is the deed of 
 A. pi-esently ; but if C. oflers it to B., there B. may refuse it in pais, and 
 thereby the obligation will lose its force." I cannot perceive how it can 
 be said that the delivery of the policy to the clerks of the Defendant, to 
 keep till the assured sent for it, and then to hand it to their messenger, 
 was not a delivery to the Defendant to the use of the assured. There is 
 neither authority nor principle for qualifying the statement in Butler and 
 Baker's Case, by saying that C. must not be a servant of A., though, of 
 course, that is very material in determining the question whether it was 
 " delivered to C. to B.'s use," which I consider it to be, in other word.s, 
 whether it was shewn that it was intended to be finally executed as 
 binding the obligor at once, and to be thenceforth the property of B. In 
 the present case, the assured could not have refused the deed in pais, for 
 it was drawn up in strict pursuance of the authority given by them in the 
 slip set out in the case ; and I think a prior authority is at least as good 
 as a subsequent assent. That question, however, does not arise, as they 
 did not refuse it in pais. 
 
 No authority, I think, has been cited which supports the position that 
 there is a technical necessity for some one who is agent of the assured 
 taking corporal possession of a policy under seal before it can be binding, 
 though intended by both parties to be so. T think it would bo very 
 
 ' 3 Co. Eep. 20.
 
 174 XENOS r. WICKHAM. [CHAP. II 
 
 inconvenient, and would work f,'re;vt injustice, if such were the law. I 
 must leave it to your Lordshijis to detei-niine whetlier it is so or not. 
 
 Mr. Justice Willes : — 
 
 My Lords, I answer the question in the negative, that upon the facts 
 stated in tlie special case, the Respondent (who represents the Victoria 
 Fire and Murine Insurance Compani/), was not, when the ship Leonidas 
 was lost, liable as insurer to the Plaintiffs on the policy, or alleged policy, 
 in tlie pleadings mentioned. 
 
 Assuming, as upon the statement it must be assumed, that the broker 
 had no authority to revoke this j.olicy, if once completed, so as to be the 
 contract of and binding upon both parties, the question is, whether it ever 
 was so completed 1 
 
 In dealing with this question as a practical one, it must be borne 
 in mind that albeit consent, not corporal possession, makes the conti-act, 
 yet the plain duty of the broker is not merely to bespeak, but to procure 
 the policy, and to procure it upon his own credit. A loose way of 
 ))usiness upon trust cannot abrogate any part of that duty, or make up for 
 tlie consequence of neglecting it ; and, indeed, taking the practice alleged 
 to prevail as a whole, it is for the most part, viz., as to the insurances 
 effected at Lloijd's, consistent with the duty of the broker to effect the 
 policy in such a manner that his employer, or he, on behalf of his 
 employer, should have the policy. 
 
 In the case of insurances at Lloyd's, no difficulty can arise, for the 
 broker sends round the policy, and procures the signatures. When 
 the policy is effected ^vith a company, therefore, if analogy is to prevail, 
 the broker ought to call for the policy. A careless practice, not stated to 
 have grown into a known usage of trade, may exist of not asking for the 
 policy, but if this be so, it is pure negligence. Nor can it be doubted 
 that the employer in such a case, equally as in that of insurance at 
 Lloyd's, is entitled to have the policy in his broker's hands. Nor could 
 tlie broker, in case of any damage arising, for want of a policy, or of a 
 proper policy, through his default in not asking for it, or looking to see 
 that it was in order, re.sist an action such as was brought by the 
 employers in Turpin v. Bilton'. 
 
 The statutes requiring contracts of marine insurance to be in writing, 
 and stamped (35 Geo. 3, c. 63, s. 11 ; 54 Geo. 3, c. 144, ss. 3, 4, 5), annul 
 contracts not so framed, consequently, a marine policy, or contract for 
 a marine policy, to be valid, must be in writing, which, by the assent 
 of both parties, shall represent the contract between them. But for the 
 decided cases, it might have been supposed that upon the slip being 
 completed, there was a contract on the part of the assurers to prepare and 
 hand over a policy according to the slip, and that although, because of the 
 statutes, no action could be maintained as upon a policy of insurance, 
 
 ' 5 Man. & G. 455.
 
 CHAP. Il] XENOS V. WICKHAM. 17o 
 
 yet ail caction might be maintained for not preparing a policy. And 
 causes liave even been tried, witliout objection, upon the notion that 
 tlie insurance is complete from the date of the slip. 
 
 But the law, as settled by the decisions upon the construction of 
 tlie statutes referred to, is, that as there can be no valid insurance, or 
 contract for an insurance, unless by writing with the statutory requisites, 
 the slip by itself has no binding force. Thus, it has been held, that, 
 notwithstanding the slip, the proposed assured, upon the one hand, 
 can insist upon being ofi", and can retract his order, and refuse to accept 
 tlie policy: Warwick v. Slade', where tlie employer retracted the broker's 
 authority after the slip was signed, though before the policy was com- 
 pleted ; and, on the other liand, that the slip imposes no liability upon 
 the proposed insurer, and there is no remedy against him until the policy 
 is complete : Parry v. The Great Ship Company^. 
 
 It follows that the slip, though complete, is no contract, nor even part 
 of a contract of insurance, but a mere proposal that a policy of insurance 
 shall be entered into in J'nturo, and, in case of insurance with a company, 
 a request that tlie policy shall be prepared at the office. Does it follow, 
 that when a policy is prepared in alleged compliance with the request, 
 it shall be, without more, the contract of both the parties 1 That cannot 
 be the rule, because it must be open to the customer, or to his broker, 
 when the negotiation takes place through a broker, to object (and 
 especially in the case of company policies, which do not always follow 
 Lloyd's form), that the policy is wrong. In case of war, or a dangerous 
 voyage, or, indeed, any case with a special provision, disputes may easily 
 arise. In this very case a question might have been raised upon the 
 omission of the running-down clause, which has been so commonly added 
 in the margin since Devaux v. Salvador' ; and see also Taylor v. Deivar*. 
 
 It is thus obvious that there must be power to object or refuse 
 assent to the policy when prepared by the company ; and, inasmuch 
 as such objection or refusal touches the question, policy or no policy, 
 it lies within the scope of the broker's authority. He may give a bad 
 reason for his refusal, as the broker in the principal case is said to 
 have done ; but the badness of the reason assigned cannot take away 
 from the effect of the act done, which, according to the maxim, must 
 depend upon the power he had to do it, not upon the soundness of the 
 reason he gave for doing it. 
 
 By way of removing this difficulty, various suggestions have been 
 made in argument. One was that the case is analogous to a conveyance 
 of property, where assent is presumed until disclaimer. I am not aware, 
 however, that this doctrine of presumed assent has ever been applied 
 to the case of a mercantile contract, with something to be done on both 
 sides, such as to insure upon terms which may or may not be correctly 
 
 1 3 Camp. 127. '- 4 B. & S. 5.56. 
 
 » 4 Ad. A E. 520. ■• 5 B. & S. 58.
 
 176 XENOS V. WICKHAM. [CHAP. II 
 
 expressed, in consideration of being paid, or allowed to debit in account, a 
 premium wliich may or may not be commensurate to the risk. 
 
 In the case of a simple benefit conferred, to be taken as it is, or not at 
 all, like a bond or a release, there might be room for sucli a presumption, 
 though it is difficult even there to recognise a complete contract before 
 assent. But the presumption is out of place as applied to a contract with 
 mutual obligations, which mu.st be matter of bargain, and must be 
 incomplete so long as either mind may dissent. 
 
 Indeed, the suggested analogy to conveyances of visible property, 
 if it held good, would not help the Plaintiffs, but rather tend to illustrate 
 the necessity of subsequent assent. Thus, if B. order of a watchmaker 
 a watch of the same make and materials as that of A., with B.'s name 
 upon it, and the watchmaker makes it accordingly, intending it for £., 
 and puts B.'s name upon it, so that it is as much as it can be the 
 very watch bargained for, yet, without a new assent on B.'s part, it does 
 not vest in him ; the watchmaker cannot make B. take to it, nor B. 
 compel its delivery. See the argument in Atkinson v. BelV. 
 
 And, in like manner, as to a contract to be prepared in futuro, 
 if goods are bought, to be paid for by the buyer's promissory note 
 or cheque, payable to the seller or order, and the goods are delivered 
 and accepted, and the buyer makes the note or cheque, and leaves it with 
 his servant, to be handed to the seller when he calls for it, that transaction 
 is not enough to vest the note or cheque in the seller, and the buyer may, 
 without more, retake the note or cheque from his servant, and put it into 
 the fire. 
 
 It is clear, therefore, that the doctrine of presumed assent to a 
 conveyance will not help, and that the mere previous request (even 
 though binding as part of a contract), that a contract, which, to be 
 valid, must be in writing, shall be prepared by one of the parties, 
 proposing to contract, for the other, has not the effect of vesting a right 
 in any contract in writing if and when so prepared, and much less can a 
 previous colloquy, not binding as part of a contract, have that effect. 
 
 As another way of getting out of the difficulty, it was suggested 
 to assume that the insurance company, or servants of the company, 
 were made agents of the employers of the broker, for the purpose 
 of assenting to the policy on their part. That would, however, be 
 simply assuming the thing that is not, for the sake of shutting out 
 an unpleasant consequence of the thing that is. To hold an auctioneer, 
 or common broker, or other independent go-between, to be authorized 
 to complete the contract for both buyer and seller, is but a necessary 
 conclusion of fact from his being their common agent. To reason thus as 
 to a clerk or servant of one of the parties, employed by him in a 
 dependent capacity to attend to his business, involves a contradiction, and 
 has no foundation of fact. 
 
 • 8 B. it C. 277.
 
 CHAP. II] XENOS V. WICKHAM. 177 
 
 These sources of light thus failing, lot the transaction itself be 
 examined with attention. It has been observed that the slip amounts 
 only to a proposal that a policy shall be prepared upon certain terms. 
 Those terras, so far as they are to bind the insurer, commonly include 
 some kno\vii uniform ones, as to which there can be no question, but also 
 others applying to the particular transaction, sometimes obscurely worded, 
 sometimes imperfectly understood, and as to which disputes may arise. 
 Tills consideration alone keeps the policy in fieri until objection is waived. 
 On the other hand, the terms, so far as they are to bind the assured, 
 include, besides the implied warranties, payment of premium, either 
 in cash, or by being credited in account. 
 
 If, then, the Plaintifl's had ordered the policy without the intervention 
 of a broker or liis obtaining credit for himself, they could not have 
 insisted upon receiving it without paying the company in cash. Had the 
 directors offered them the policy, and had they refused to pay for it, they 
 might have treated the negotiation as at an end, and cancelled the 
 proposed policy. Had the loss happened before the Plaintiffs called for 
 the policy and paid the premium, the same result would follow, though 
 the insurers might not choose to take advantage of a short delay. So 
 much for a cash transaction. 
 
 If the directors agreed to insure against the Plaintifl's' proTnissory note 
 at a month, like considerations would arise. Had they in such case 
 prepared the policy, and left it vnt\\ their clerk, and the Plaintiffs had 
 drawn the note, and left it with their clerk, it is difficult to see why, 
 without more, the policy should vest in the Plaintiffs and not the note in 
 the company, which, without more, it clearly would not. 
 
 In the principal case the directors were content to take the broker's 
 credit instead of cash ; that is to say, instead of stipulating for cash down 
 they stipulated for the broker's allowing them to charge him in account 
 with the premium ; and this the broker, refusing to take to the policy, 
 refused to allow them effectually to do, and so put the directors in the 
 same position as if they had stipulated for cash, and cash had not 
 been paid. 
 
 Some confusion has arisen from an attempt to deal with this case as if 
 it had been that of an agent of a named principal, undoing, without 
 authority, a contract which he had completely effected in pursuance of his 
 authority. The case ought not to be so regarded. The broker was an 
 agent to procure a policy in consideration of a payment to be made to 
 him by his employers, with whom, directly, the Defendant had nothing to 
 do, he taking care that the policy was effected upon the given terms and 
 upon his credit, the Defendant looking to him for payment, and having no 
 claim against his employers. Inasmuch, then, as the broker has to 
 exercise a judgment upon the sufficiency of the policy, it was necessarily 
 within the scope of his authority to reject tliat prepared as not being one, 
 or the one, ordered. When he does so properly his employer gets the 
 F. 12
 
 178 XENOS V. WICKHAM. [CHAP. 11 
 
 benefit; when lio dot-s so improperly his employer has his remedy by 
 action against the broker. But tlie Defendant, who dealt with the 
 broker only, and stipulated for his taking to and being debited for such a 
 policy, must, upon his rejecting it, and refusing to be debited in account 
 with the premium thereupon, have an equal right to consider the 
 negotiation at an end, and to cancel the proposed policy, as if cash had 
 been stipulated for and refused. 
 
 The transaction cannot properly be split up into parts. It stands 
 upon the same footing as if, upon one and the same occasion, the broker 
 had ordered the policy at the Respondent's office, and whilst he waited 
 for it the seals iiad been affixed to a form of policy in another room, and 
 before he received or assented to the policy he had said, " Stay ; I made a 
 mistake. I decline to take up the policy, and you must not charge me in 
 account with the premium." Whereupon the fomi was cancelled. 
 
 No subsequent protest by the principals that their agent ought to 
 have acted otherwise can avail them. Their payment of the premium was 
 not made to the insurers, but to their own ill-conducted broker, and their 
 remedy must be against him. The Defendant has not received, but has 
 been refused, the premium ; and he was in no default, because he acted 
 upon the refusal of the broker, to whom the whole business of effecting 
 the policy was left. 
 
 The fallacy of the argument for the Plaintiffs consists in separating 
 the preparation of the policy from the rejection of it by the broker, and 
 thus splitting up into several contracts, one of which is alleged to be 
 authorized and the other not, what in reality, though distinct events in 
 point of time, constituted together but one negotiation, which, by reason 
 of the misconduct of the Plaintiffs' agent, was abortive. 
 
 The question is thus answered in the negative. 
 
 July 16. The Lord Chancellor (Lord Chelmsford) : — 
 
 My Lords, the difference of opinion which has prevailed amongst the 
 learned Judges in this case must necessarily diminish the confidence 
 which I feel in the judgment I have formed upon it, more especially as 
 that judgment is not in accordance with the views of the majority of the 
 Judges. 
 
 The question is one more of fact than of law; and therefore, in 
 considering it, it will be necessary to refer to the facts contained in the 
 special case : — [His Lordship stated them very fully]. 
 
 The usage with respect to premiums upon insurances effected by 
 brokers is clearly explained by Lord Ellenhorouyh in Jenkins v. Power', 
 and by Mr. Justice Bayley in Power v. Butcher". The latter learned 
 Judge says': "According to the ordinary course of trade between the 
 assured, the liroker, and the underwriter, the assured do not, in the first 
 
 > 6 M. & S. 282. " 10 B. & C. 329. s Ibid. 339.
 
 CHAP. Il] XENOS V. WICKHAM. 179 
 
 ■instance, pay the premium to the broker, nor does the latter pay it to the 
 underwriter. But, as between tlie assured and the underwriter, the 
 premiums are considered as paid. The undei'writer, to whom in most 
 instances the assured are unknown, looks to the broker for payment, and 
 he to the assured. The latter pay the premiums to the broker only, and 
 he is a middleman between the assured and the underwriter." 
 
 The questions which arise out of the facts of the case are : — 1st. 
 Whether there was a complete contract of insurance between the parties % 
 and, 2nd. If there was a complete contract, whether it was afterwards 
 cancelled by tlie Plaintiffs' authority 1, 
 
 Upon the first question we have no evidence of the fact of the 
 execution of the policy, except that which arises upon the face of the 
 instrument itself, and upon the facts stated in the special case that 
 the policy (which must be taken to mean the executed policy) is kept 
 by the company until sent for by tlie assured or his broker. The policy 
 purports to be signed, sealed, and delivered by two of the directors of the 
 company in the presence of Reginald Scaife resident secretary. This 
 statement on the face of the policy tliat all acts were done to render the 
 execution complete, which is acknowledged by the directors who executed 
 it, must, I think, be taken to be conclusive against the company, that it 
 was not only signed and sealed, but also delivered. We all know the 
 formal mode of executing a deed by the words, " I deliver this as my act 
 and deed " — a form which, no doubt, or something equivalent to it, was 
 observed upon this occasion. The policy, most prolsably, was afterwards 
 given to tlie secretary, to be kept till called for. Now, although the 
 policy was thus retained by the officers of the company, when formal 
 execution of it had taken place, they held it for the Plaintifi's, whose 
 property it became from that moment. It is a mistake to suppose, as 
 some of the learned Judges have done, that the policy wanted its complete 
 binding effect till it was delivered to and accepted by Lascaridi. The 
 usage of insurance companies, to keep the policy until sent for by the 
 assured or his broker, is not for the purpose of completing the instrument 
 by a delivery personally to the party or his agent, but merely as a matter 
 of convenience. And as to Lascaridi's acquiescence and acceptance being 
 necessary to complete the contract, I apprehend that thei'e is no ground 
 for such an opinion. He was the broker and agent to the Plaintiffs, to 
 efiect an insurance upon their vessel upon certain terms dictated by them. 
 He prepared the slip according to his directions. When the policy was 
 executed, in exact conformity to his instructions, his duty was so far 
 discharged ; and witliout the authority of the Plaintiffs he could not 
 refuse to accept it. They had effected, through their agent, a complete 
 binding contract, wliich they alone could have a right to abandon. 
 
 It is hardly necessary, after the preceding observations, to say 
 anything upon the second question, as to tlie supposed cancellation 
 of the policy. All the Judges seem to have thought that if the contract 
 
 12—2
 
 180 XENOS V. WICKHAM. [CHAP. II 
 
 was Ijindiiig, Lascarldi liad no authority to cancel it. Tlie company 
 could not have been led from anything in the previous transaction 
 respecting tlio same vessel, to suppose that Lascaridi was authorized to 
 act beyond tlie ordinary scope of the authority of a broker. It is one 
 thing to cancel a slip, wliicli is merely the inception of a contract, and to 
 cliange tlie terms of the proposal for an insurance; and an entirely 
 different thing to release the underwriters from their liability upon a 
 policy. It is quite clear that Lascaridi had no authority from the 
 Plaintiffs to relinquish on their behalf the benefit of a contract to which 
 they were entitled, and that the company had no reason to suppose that 
 he possessed any such authority. 
 
 I think that tlie judgment of the Exchequer Chamber was wrong 
 and ought to be reversed, and that judgment should be entered for 
 the Plaintiffs. 
 
 Lord Cranworth : — 
 
 My Lords, my noble and learned friend has gone so fully into the facts 
 of this case, that I sliall not fartlier advert to tliem, but shall assume that 
 they are present to the minds of your Lordships. 
 
 There is one part of this case which seems to me to admit of no doubt. 
 If tlie policy was so executed as to liave become a complete instrument, 
 binding on the Respondent, and giving a good right of action to the 
 assured in the event of a loss, I think it clear that he could not cancel it 
 at tlie instance of Lascaridi. The insurers had a right to consider him as 
 ha^dng authority to do all whicli a broker can do in discharge of his duty 
 in effecting a policy, and they miglit safely settle Avith him in case of 
 a loss, if that be the ordinary mercantile usage ; but there is no suggestion 
 that it is part of the ordinary duty or power of a broker to cancel 
 agreements once validly and completely entered into. 
 
 Tlie only semblance of plausibility in support of such an argument 
 was, in this case, the fact tliat on a previous occasion he had an autliority 
 expressly delegated to him by the Plaintiffs to cancel something— but that 
 was an authority, not to cancel a policy, but to cancel a slip. They had 
 originally proposed, tlirough Lascaridi, to effect a policy on the Leonidas 
 with the Respondent, on terms materially differing from that ultimately 
 acted on, and a slip had been signed, and handed to the Respondent for 
 that purpose, five days before the signing of tlie slip on the 30th of April ; 
 but on that latter day, and before anything had been done, Lascaridi 
 called on the Respondent, at the instance of the Appellants, expressing 
 their desire to substitute the terms of insurance ultimately acted on, 
 instead of those originally proposed. To this the Respondent agreed, and 
 the slip dated the 30th of April, 1861, was accordingly prepared, and left 
 with the Respondent as the groundwork of the policy to be prepared by 
 tlie company. It was suggested that as the Appellants had thus 
 authorized Lascaridi to make this important change in the nature of the
 
 CHAP. II] XENOS V. WICKHAM. 181 
 
 contract to be entered into, the Respondent might reasonably suppose he 
 had authority to sanction the cancellation of a policy already validly 
 liindiug on the assurers. To this I cannot accede — as it is admitted that 
 Lascaridi had not, in fact, any authority to cancel the policy of the 1st of 
 May. If it was a binding instrument, his act cannot affect the 
 Appellants, unless it was done according to some ordinary course of 
 business which would warrant it. I can see nothing whatever to warrant 
 such an assumption. And, indeed, the point was not much insisted on. 
 The point really argued was, that the circumstances are not such as to 
 shew that any absolute liability ever attached on the company. The 
 policy, it is said, did not become a binding contract on the company until 
 it had been taken from the office by the Appellants or tlieir broker, and 
 been accepted by them as the terms by which they were to be 
 bound. 
 
 There is no direct evidence as to what actually took place when 
 the policy was, according to the practice (as stated in the language 
 of the special case), tilled up from the slip by the officers of the company ; 
 but as the poUcy purports to have been signed, sealed, and delivered by 
 two directors of the company in the presence of the registrar, in pursuance 
 of the powers and directions contained in the deed of settlement of the 
 company, the fair inference is, that this was the course prescribed by the 
 deed, and that that course had been duly followed. 
 
 But, as to the effect of what was so done, the parties differ. The 
 Appellants contend that by thus signing, sealing, and delivering the 
 policy, the directors made it an instrument thenceforth binding on the 
 company. On the other hand, the Respondent contends, that until the 
 policy was taken away by the assured, or his broker, it did not become 
 binding on the company. This latter view is that which has been taken 
 by the great majority of the learned Judges ; and it is therefore not 
 without some hesitation that I have arrived at a different conclusion, and 
 that I concur with the opinions of the small majority of the Judges who 
 heard the case when it was argued at your Lordships' bar. I am of 
 opinion that from the moment when the directors, acting, as I infer they 
 did, in pursuance of the powers and duties conferred and imposed on them 
 by the deed of settlement, executed the policy, it became absolutely 
 binding on the company ; and that it was not necessary, in order to 
 give it binding efficacy, that it should be taken away by the Appellant or 
 his broker. 
 
 I come to this conclusion on the following grounds : — In the first 
 place, the efficacy of a deed depends on its being sealed and delivered by 
 the maker of it ; not on his ceasing to retain possession of it. This, as a 
 general proposition of law, cannot be controverted. It is not affected liy 
 the circumstance that the maker may so deliver it as to suspend or qualify 
 'its binding effect. He may declare that it shall have no effect until a 
 certain time has arrived, or till some condition lias been perfomied, but
 
 182 XENOS V. WICKHAM. [CHAP. 11 
 
 wlien the time has arri\cd, or the condition has been performed, the 
 delivery l)eeoines absolute, and the maker of the deed is absolutely bound 
 by it, whether ho has parted with the possession or not. Until the 
 specified time has arrived, or the condition has been performed, the 
 insti-ument is not a deed. It is a mere escrow. 
 
 If, tlierefore, the directors who executed this policy, delivered it only 
 conditionally, i.e., to take effect only when taken away by the Appellants 
 or their broker, then, as it was not so taken away, it never became 
 operative. But I can discover nothing leading to the inference that there 
 was any such condition attached to the delivery. The expression in the 
 case tliat the policy is kept by the company until it is sent for by the 
 assured or his broker, can only mean that this is the ordinary course of 
 practice. But such a practice cannot, without more, have the effect of 
 converting that which would otherwise be an absolute, into a conditional 
 delivery ; of converting delivery as a deed into delivery as an escrow. 
 The practice referred to is, at least, as consistent with the hypothesis of 
 delivery as a deed as of delivery as an escrow. A policy of this company 
 can only be executed (as I presume) when certain of the directors and 
 officers of the company are assembled ; and tliis explains why it is 
 executed in the absence of the party assured. The practice assumes the 
 previous assent on the part of the assured to the policy to be executed. It 
 is not the practice that the assured should call for or examine the policy 
 before he takes it away, but that he should send for it, e\'idently treating 
 it as an instrument complete before it is taken away from the office. If, 
 when it has been sent to him, he should discover that it is not confonnable 
 with the slip, his only remedy would be a remedy in equity to get it 
 corrected according to the real meaning of the parties. 
 
 I know of nothing intermediate between a deed and an escrow. If the 
 policy, when signed, sealed, and delivered by the directors, does not 
 thereby immediately become the deed of the company, I do not see when 
 and how it afterwards acquires that character. The practice is, that it 
 should be kept by the company till sent for by the assured or his broker ; 
 not till the assured has had an opportunity of examining it, so as to 
 ascertain that it is conformable to the slip. 
 
 It can hardly be argued that after the assured has sent for and 
 obtained possession of it, the company is not bound by it, even if it is not 
 in conformity with the slip. Suppose the liability of the company, 
 accorcUng to the slip, was to endure for a year, but that by the policy it is 
 restricted to six months, the assured on receiving the policy and discover- 
 ing the error might well object, and insist on having a different policy ; 
 but yet if a loss should happen within the six months, it surely cannot be 
 doubted that the company would be liable on the policy actually executed. 
 So if a loss should occur while the policy remains in the office, in 
 consequence of the assured having carelessly forgotten to send for it. 
 Tills can only be, because it had been completely executed, though ne\er
 
 CHAP. II] MAYOR OF LUDLOW V. CHARLTON. 183 
 
 seen and approved by the assured. And if executed, I am of opinion that it 
 became complete when signed, sealed, and delivered. If tlie usage had been 
 that it should, after being signed, sealed, and delivered, remain in the hands 
 of the secretary till the assured or his broker had done some act signifying 
 his approbation of it, that might have raised a question whether, until that 
 approbation had been expressed, it was more than an escrow. But no 
 such usage is stated. On the contrary, the thing sent for by the assured 
 or his broker is, as I have already stated, clearly looked to as something 
 complete before it is taken from the office, not as a document to be made 
 perfect afterwards by some act of the assured. 
 
 On these grounds I have come to the conclusion, after much con- 
 sideration, that the three learned Judges who were the majority giving 
 their opinions to your Lordships were right ; and so, that judgment ought 
 to be for the Appellants. 
 
 Judgment reversed/ and judgment given for the Plaintiff. 
 Lordi Journals, 16th July, 1867. 
 
 THE MAYOR, ALDERMEN, AND BURGESSES OF THE 
 BOROUGH OF LUDLOW v. CHARLTON, Esq. 
 
 In the Exchequer, 1840. 
 
 [Reported in 6 Meeson d- WeUby, 815.] 
 
 Covenant. — Tlie declaration stated a demise dated the 25th day of 
 March, 1S20, by the bailifls, burgesses, and communalty of the borough of 
 Ludlow, of certain lands called the Foldgate Farm, to the defendant, for a 
 term of twenty-one years, at a yearly rent of XI 50, and a covenant by the 
 defendant for payment of such rent. Breach, in nonpayment of arrears 
 of rent, to the amount of X375. 13s. 5d. Pleas, 1st, payment; 2ndly, 
 a set-off for X500, agreed to be paid by the corporation to the defendant, 
 for pulling down and altering the site of a house called the Charlton Arms, 
 in the to\\ai of Ludlow, and for altering a roadway there, and also for 
 work, labour, and materials, and for money lent ; 3rdly, a special plea, 
 stating in substance that it was agreed between the old corporation of 
 Ludlow (before the passing of the 5 <fe 6 Will. 4, c. 76), and the defendant, 
 that the defendant should alter the situation of the Charlton Anns, and 
 should be paid by them the sum of £500 for making such alterations, 
 which should be set against the rent payable by the defendant to the 
 corporation ; and the plea then went on to aver, that the defendant had
 
 184 MAYOR OF LUDI.OW v. CHARLTON. [CHAP. II 
 
 made the alterations accordingly. Replications, taking issue on each of 
 the pleas. 
 
 At tiic trial liefore Gumey, B., at the last Shrewsbury Summer 
 Assizes, 1839, the defendant offered in evidence the following resolution, 
 entered in tiie corporation books at a meeting of the old corporation : — 
 
 "28th of October, 1835. 
 
 " Resolved— Tliat £500 be paid to Mr. Charlton, to alter the Charlton 
 Arms according to the plan produced by Mr. Atkins, if lie will give his 
 consent to the alteration. 
 
 " Jfr. Charlton then addressed the meeting, and stated that he had no 
 objection to the Charlton Anns Inn being altered according to the plan 
 produced, and on receiving £50 to alter the present road to the stables, if 
 Mr. Stead thought that such sum would be necessary to make a convenient 
 approach to the stables. 
 
 " The thanks of the meeting were then given to Mr. Charlton, for the 
 readiness he has shewn to accommodate the pubKc." 
 
 The plaintiff's counsel objected to the reading of this entry, on the 
 ground that it ought to have been stamped as an agreement. The learned 
 Judge received the evidence, subject to the objection. It was proved also 
 that the defendant had made the alterations agreed on, at the Charlton 
 Arms and in the road, which were finished early in the year 1836, 
 and that the expense of them exceeded £500. The learned Judge, in 
 sunnning up, expressed his opinion that the third plea was not proved, 
 and left it to the jury, upon the second issue, to say whether there 
 was an agreement between the old corporation and the defendant, 
 whereby they agreed to pay the defendant the sum of £500 to alter 
 the Ciiarlton Anns, and whether the defendant had performed the 
 agreement on his pai-t. The jury found these questions in the affirma- 
 tive ; and the learned Judge then directed a verdict to be entered for 
 the plaintiffs for £300, (the balance of rent in arrear, after deducting 
 payments proved by the defendant), giving the defendant leave to move 
 to enter a verdict for him on the second issue, if the Court should 
 be of opinion tliat the entry in tlie corporation book did not require 
 a stamp. 
 
 In Michaebnas Term, Tal/ourd, Serjt., obtained a rule nisi accordingly ; 
 against whicli, in Easter Term last, 
 
 Ludlov; Serjt., ( Whatdcy with him), shewed cause. — [The argument on 
 the question as to the stamp is omitted, as the judgment of the Court 
 turned on another point.] Assuming that there was evidence of a 
 contract between the old corporation and tlie defendant, it was invalid, 
 not being under the corporation seal. It is clear law, according to all tlie 
 autliorilies, that a coi-poration cannot bind itself by a contract which is to 
 have the effect of vestmg or devesting corporation property, except under
 
 CHAP. II] MAYOR OF LUDLOW V. CHARLTON. 185 
 
 its common seal. 1 Bla. Conim. 475; Com. Dig., "Franchise," (F) 12, 
 13, 14; Bac. Abr. "Corporation," (E) 3; Wilmott v. Coveniri/'. It is 
 laid down, indeed, in the books, that certain small insignificant acts, not 
 affecting tlie revenues of the corporation, may be done by the head alone, 
 without using tlie common seal ; such as appointing a butler, cook, or 
 bailiff: Carey v. Matthews', Smith v. Birmingham Gas Light Co.^. The 
 only other exception to the general rule is in cases where the legislature 
 has invested particular officers of trading corporations with the power of 
 drawing bills in the name of the entire body : Slark v. Hiyhgate Archway 
 Co. ■*, Broughton v. Manchester Watenvorks Co. *. In this case, the 
 contract devests a considerable interest out of the corporation. [^Parke, B. 
 — I doubt whether any case has gone so far as to shew that a corporation 
 can bind itself by such a contract as this, not under seal. The old cases 
 permitted it as to certain small things, which must of necessity be done 
 without that formality, and this exception has been extended by the 
 modem cases to things which the corporation, by the nature of its consti- 
 tution, must do to carry on its concerns : but that principle does not apply 
 to the case of a municipal corporation ; it cannot be necessary for the 
 purposes of its constitution, that it should part with so much of its 
 propei'ty. The cases decided in the Court of King's Bench " have broken 
 in upon the old law, but not to this extent. The American law has 
 entirely abrogated the old doctrine ', but we have not.] — The Court then 
 called on 
 
 Talfourd, Serjt., and R. V. Richards, to support the rule. — The 
 distinction on this subject is between contracts executed and executory. A 
 coi-poration cannot be sued on an executory contract, unless it were 
 entered into by an instrument executed under the common seal ; but 
 where the contract has been actually executed, and the corporation has 
 enjoyetl the benefit of the consideration for it, an implied assumpsit arises 
 against them. East London Water Works Co. v. Bailey"; Mayor of 
 Stafford V. Till ' ; Mayor of Carmarthen v. Levns '". Suppose, instead of 
 agreeing with Mr. Charlton, the corporation had contracted by parol with 
 a road contractor who did the work, — could he not have sued them in 
 assumpsit? In the case last cited, the subject of the action was tolls — 
 things incorporeal, which could not properly be let at all without deed ; 
 yet the benefit of the parol demise having been enjoyed by the defendant, 
 they were held to be recoverable in assumpsit. The law on this subject 
 lias been much relaxed since Blackstone's work was written, and exceptions 
 have been introduced quite beside the old notion of small insignificant 
 matters, which must be done in haste. Where is the line to be drawn 
 
 ilY. &C. .518. 2 1 Salk. 191. ' i Ad. & E. 526; 3 Nev. & M. 771. 
 
 ■• 5 Taunt. 792. = 3 jj. j;, Adol. 1. 
 
 « Beverley v. Lincoln Gas Co., 6 Ad. & E. 829; Church v. Imperial Gas Co., Id. 816. 
 
 ^ See Story's Commentaries ou the Law of Agency, pp. 45, 40. 
 
 8 4 Biug. 283 ; 12 Moore, .533. " 4 Bing. 75. i» C C. & P. G08.
 
 186 MAYOR OF LUDLOW V. CHARLTON. [CHAP. II 
 
 between important and unimportant acts ? is it to vary with the wealth 
 and greatness of tlie coi-]joration 1 There are, indeed, cases where trading 
 corjiorations liave even lieen lield sualde on execiUwij contracts : Church 
 V. Imperial Gas Liyht Company \ [Alder son, B. — Those are cases in 
 whicli the coi-poration is called into existence solely for the purpose of 
 trading. The case of Taijlor v. The Dtdivich Iloipital ° is an authority 
 a,!,'ainst tlie general proposition you contend for. Is not this a contract 
 binding the corporation to pay money out of their revenues V\ So would 
 every contract of every kind. The argument for the plaintiffs would go to 
 this, that in no case could repairs, however trifling, be done for a corpora- 
 tion, unless the order or contract were under seal. The solution of the 
 dilticulty appears to be contained in the observation of Coleridge, J., in 
 Church V. Imperial Gas Light Company ' : " The truth seems to be, that 
 the rule on this subject has been relaxed, in consequence of the necessity 
 produced by changes in the circumstances of the times. It is difficult to 
 reconcile aU the decisions with strict legal prmciples." Actions may be 
 maintained against a board of guardians. \_Rolfe, B. — They are only 
 corporations for particular purposes. The cases in which it has been said 
 that a cook or butler need not be appointed under the common seal, rest 
 on a fiction that some individual has been duly authorized to make con- 
 tracts of that nature on behalf of the corporation]. 
 
 Cur. adv. vult. 
 
 In this term, the judgment of the Court was delivered by 
 
 EoLFE, B. — The principal point on wliich we reserved our judgment 
 in this case, was as to the right of tlie defendant to set off a sum of money, 
 alleged to be due to liim from the plaintiffs, against their demand for rent 
 sought to be recovered in this action. It appeared at the trial, that, after 
 the rent in question had become due from the defendant to the corporation, 
 a resolution was entered into at a corporate meeting, holden soon after the 
 passing of the Municipal Reform Act, whereby it was resolved, that a 
 sum of £500 should be paid to the defendant, in consideration of certain 
 improvements to be made by him in altering the Charlton Arms Inn. To 
 this resolution the defendant, who was present, assented, and a memoran- 
 dum of such assent was duly entered in the books of the corporation. The 
 defendant has since made the proposed alterations, and he now seeks to 
 set off the £500 against the sum due for rent. 
 
 Whether the resolution of the corporation required a stamp as an 
 agreement, or as evidence of it, was one point reserved by my Brother 
 Gurney, and discussed at the bar. It becomes unnecessary to decide that 
 pomt ; because we are of opinion that, if the agreement be taken to have 
 been duly proved, the defendant has no right to make such a set-ofl"; and 
 we come to this conclusion upon grounds wholly independent of any 
 
 ' Ad. &E. 8i6; 3N. &P. = 1 P. Wms. 655. = 6 Ad. & E. 853.
 
 CHAP. Il] MAYOR OF LUDLOW V. CHARLTON. 187 
 
 considerations arising from the Municipal Keform Act. The alleged 
 contract between the corporation and the defendant is not founded on 
 deed, but rests wholly on what is to be found in the corporate books ; 
 and we are of opinion that sucli a contract does not bind the corporation. 
 
 The rule of law on tliis subject, as laid down in all the old authorities, 
 is, that a corporation can only bind itself by deed. See Comyns' Digest, 
 tit. "Franchise," (F) 12, 13, and the authorities there referred to. The 
 exceptions pointed out rather confirm than impeach the rule. A corpora- 
 tion, it is said, which has a head, may give a personal command, and do 
 small acts ; as it may retain a servant. It may authorize another to drive 
 away cattle damage feasant, or make a distress, or the like. These are all 
 matters, so constantly recurring, or of so small importance, or so little 
 admitting of delay, that, to require in every such case the previous affixing 
 of the seal, would be greatly to obstruct the every day ordinary conveni- 
 ence of the body corporate, without any adequate object. In such matters, 
 the head of the corporation seems, from the earliest time, to have been 
 considered as delegated by the rest of the members to act for them. 
 
 In modem times a new class of exceptions has arisen. Corporations 
 have of late been established, sometimes by Royal Charter, more frequently 
 by act of Parliament, for the purpose of carrying on trading speculations ; 
 and where the nature of their constitution has been such as to render the 
 drawing of bills, or the constant making of any particular sort of contracts 
 necessary for the purposes of the corporation, there the Courts have held 
 that they would imply in those who are, according to the provisions of the 
 Charter or act of Parliament, carrying on the corporation concerns, an 
 authority to do those acts, without which the corporation could not 
 subsist. This principle will fully warrant the recent decision of the 
 Court of Queen's Bench, in Beverley v. Lincoln Gas Light and Coke 
 Comjjany '. 
 
 The present case, however, was argued at the bar, as if, by the 
 decision in that last case, the old rule of law was to be considered as 
 exploded, and as if, in all cases of executed contracts, corporations were to 
 be deemed bound in the same manner as individuals. But this would be 
 pressing the decision in question far beyond its legitimate consequences ; 
 and that the Court of Queen's Bench had no such meaning, is plain from 
 the subsequent case of Church v. Imperial Gas Light Company'. Lord 
 Denman, in delivering tlie judgment of the Court in that case, says, 
 (p. 861,) "The general rule of law is, that a corporation conti-acts under 
 its common seal : as a general rule, it is only in that way that a corpora- 
 tion can express its will, or do any act. That general rule, however, 
 has, from the earliest traceable periods, been subject to exceptions, the 
 decisions as to which furnish the principle on which they have been 
 established, and are instances illustrating its application, but are not 
 to be taken as so prescribing in terms the exact limit that a merely 
 1 6 Ad. & El. 829. = 6 Ad. & El. 846.
 
 188 MAYOR OF LUDLOW V. CHARLTON. [cHAP. II 
 
 circumstantial difference is to exclude from the exception. This principle 
 appears to be convenience, amounting almost to necessity. Wherever 
 to iiold the rule applicaljle would occasion very great inconvenience, or 
 tend to defeat the very object for which the corporation was created, the 
 exception has prevailed ; hence the retainer by parol of an inferior 
 servant, tiie doing of acts very frequently recurring, or too insignificant 
 to be worth the trouble of affixing the common seal, are established 
 exceptions: on the same principle stands tlie power of accepting bills 
 of exchange, and issuing promissory notes, by companies incorporated 
 for the purposes of trade, with the rights and liabilities consequent 
 thereon." 
 
 To every word of this we entirely subscribe, and, applying the 
 language of Lord Denman to the present case, it is quite clear that there 
 was nothing to enable the corporation of Ludlow to contract with the 
 defendant otherwise than in the ordinary mode, under the corporate 
 seal. 
 
 In contracting without a seal, there was no paramount convenience 
 so great as to amount almost to necessity. To have required a seal 
 would certainly not have tended to defeat the object for which the 
 corporation was formed, nor was the subject-matter of the contract one 
 either of frequent ordinary occurrence, or of ui-gency admitting no delay. 
 
 Before dismissing this case, we feel ourselves called upon to say, that 
 the rule of law requiring contracts entered into by corporations to be 
 generally entered into under seal, and not by parol, appears to us to 
 be one by no means of a merely technical nature, or which it would be at all 
 safe to relax, except in cases warranted by the principles to which we 
 have already adverted. The seal is required, as authenticating the 
 concurrence of the whole body corporate. If the legislature, in erecting a 
 body corporate, invest any member of it, either expressly or impliedly, 
 with authority to bind the whole body by his mere signature, or otherwise, 
 then, undoubtedly, the adding a seal would be matter purely of form, and 
 not of suljstance. Every one becoming a member of such a corporation, 
 knows tliat he is liable to be bound in his corporate character, by such an 
 act ; and persons dealing with the corporation know, that by such an act, 
 the body will be bound. But in other cases, the seal is tlie only authentic 
 evidence of what the corporation has done, or agreed to do. The reso- 
 lution of a meeting, however numerously attended, is, after all, not the act 
 of the whole body. Every member knows he is bound by what is done 
 under the corporate seal, and by nothing else. It is a great mistake, 
 therefore, to speak of the necessity for a seal, as a relic of ignorant times. 
 It is no such thing : either a seal, or some substitute for a seal, which by 
 law shall be taken as conclusively evidencing the sense of the whole body 
 corporate, is a necessity inherent in the very nature of a corporation; 
 and the attempt to get rid of the old doctrine, by treating as valid 
 contracts made with particular members, and which do not come within
 
 CHAP. II] CLARKE V. GUARDIANS OF CUCKFIELD UNION. ISO 
 
 the exceptions to whicli we have adverted, might be productive of great 
 inconvenience. 
 
 We have made these remarks, in consequence of the very great lengtli 
 to which some of the arguments addressed to us, as to allowing corpora- 
 tions to contract otherwise than under seal, would go. The case, however, 
 under discussion does not call on us to do more than say, that none of the 
 authorities warrant us in giving effect to tlie resolution relied on by the 
 defendant, and consequently the rule nisi for setting aside the verdict 
 must be discharged. 
 
 liule discharged. 
 
 CLARKE AND ANOTHER v. THE GUARDIANS OF THE 
 CUCKFIELD UNION. 
 
 In the Queen's Bench, June 12, 1852. 
 
 [Reported in 21 Law Journal Reports, Q. B. 349.] 
 
 This was a motion, on the part of the defendants, to enter a nonsuit. 
 The action was debt for goods sold and delivered, and for work and 
 labour. 
 
 Plea — ^Never indebted. 
 
 The demand was for some water-closets, put up by the plaintiffs at the 
 Cuckfield Union Workhouse, by the direction and with the approbation of 
 the defendants. There was no contract under seal. The plaintiffs 
 obtained a verdict for 12^. 15s., with liberty to the defendants to move 
 to enter a nonsuit, on the ground that there was no agreement under 
 seal. 
 
 Welsby and Pigott shewed cause (May 12, 1851). 
 
 The question is, whether the defendants, who entered into a parol 
 contract with the plaintiff for the goods which he has supplied, are 
 bound by that contract, or whether a contract under seal was necessary to 
 render the defendants liable. It is submitted that, under the present 
 circumstances, the defendants are liable, though there was no agreement 
 under seal. On the general rule that a corporation cannot bind itself 
 except under seal, several exceptions have, in modern times, been en- 
 grafted. When the matter of the contract is of trifling interest, or of 
 every-day occurrence, there need be no agreement under seal ; so also 
 when the act contracted for is incident to the purposes for which the 
 corporation was created, which was the case in the present instance. 
 For, by the statutes 4 & 5 Will. 4, c. 76, s. 38, and the 5 & 6 Will. 
 4, c. 69, s. 7, the guardians of the poor in a union are constituted a
 
 190 CLARKE V. GUARDIANS OF CUCKFIELD UNION. [CHAP. II 
 
 corporation, and liave power to hold lands for the purposes of the act, 
 and are intrusted with the government of the workhouses and the 
 management of the poor. Tlie erection of water-closets would clearly 
 be an act within the scope of the defendants' authority as guardians. 
 Many cases shew that, in somewhat similar circumstances, a contract 
 under seal is not essential. Sanders v. the St Neot's Union^ is closely in 
 point. Tliey referred also to Paine v. the Strand Union\ Church v. the 
 Imperial Gaslight and Coke Comjyany", Be Grave v. the Mayor, <i-c. of 
 Monmouth*, Beverley v. the Lincoln Gaslight and Cohe Company'', The 
 Copper Miners Company v. Fox'^. 
 
 Ilance, in support of the rule. — A trading corporation stands in a 
 different position from a municipal corporation, -with respect to parol 
 contracts for matters incidental to the purposes of its existence. The 
 guardians of the poor are incorporated, among other things, for the 
 erection of union workhouses. If the argument on the other side be 
 correct, that a corporation may contract without seal for all purposes 
 incident to its creation, the defendants might have contracted for the 
 building of the workhouse by parol. There was no pressing necessity 
 here. The corporation might have been called together for the purpose of 
 affixing the corporate seal to the contract. The weight of the authorities 
 is in favour of the proposition maintained by the defendants — The Mayor, 
 &c. of Ludlow V. Charlton", Diggle v. the London and Blackwall Railway 
 Company", Lamprell v. the Billericay Union'. The case of Sanders v. 
 the St Neofs Union is not satisfactory. It is contrary to the general law. 
 The reasons are not fully given. 
 
 Cur. adv. vult. 
 
 WiGHTMAN, J. now delivered judgment. — I have deferred giving 
 judgment in this case, which was argued before me some time ago, in 
 the hope that the action, which was for the sum of 121. 15s. only, 
 would have been settled; the importance of the question raised being 
 out of all proportion to the amount in difference between the parties. 
 The action was in debt for goods sold, and for work and labour ; and 
 upon the trial, before the under-sheriff (the sum demanded being under 
 20^.), the plaintiffs had a verdict for 12^. 15s., with liberty reserved 
 for the defendants to move for a non-suit, on the ground that there 
 was no contract by the defendants under seal. The demand arose in 
 
 1 8 Q. B. Rep. 810; s. c. 1.5 Law J. Rep. (n.s.) M. C. 104. 
 - 8 Ibid. 326 ; s. c. 15 Law J. Rep. (n.s.) M. C. 89. 
 3 6 Ad. & E. 840; s. c. 7 Law J. Kep. (n.s.) Q. B. 118. 
 < 4 Car. <fe P. 111. 
 
 » 6 Ad. & E. 829 ; 8. c. 7 Law J. Rep. (n.s.) Q. B. 113. 
 " 20 Law J. Rep. (n. s.) Q. B. 174. 
 
 ' 6 Mee. & W. 815; s. c. 10 Law J. Rep. (n.s.) Exoh. 75. 
 8 5 Exch. Rep. 442 ; s. c. 19 Law J. Rep. (n.s.) Exch. 308. 
 ■^ 3 Excb. Kep. 283; s. c. 18 Law J. Rep. (n.s.) Exch. 282.
 
 CHAP. Il] CLAEKE V. GUARDIANS OF CUCKFIELD UNION. 191 
 
 respect to water-closets, for a new description of wliich the plaintiffs 
 had obtained a patent, and which were put up by them at the union 
 workhouse, by the direction and with the approbation of the defendants 
 at a meeting of the board, which it was not disputed was regularly 
 constituted. There were several questions that arose in tlie course of 
 the cause as to the liability of the defendants, which was disputed upon 
 other grounds ; but they were all disposed of except that which now 
 remains for consideration, whether assuming the supply of the articles 
 to have been such as was proper and needful for the workhouse, and 
 that the defendants ordered them at the meeting of the board to be 
 furnished by the plaintiffs, and afterwards approved and kept them, 
 and that if they had not been a corporation they would have been liable 
 to pay for them, yet, that as the guardians of the poor are a corporation 
 and sued as such, they are not liable unless they contracted under seal 
 with the plaintiffs. The injustice of allowing the defendants to have 
 the benefit of the work done by the plaintiffs without paying for it, 
 makes it the more necessary to inquire strictly, whether the general rule 
 of law applies to this case, or whether it falls within any exception 
 which may enable the plaintiffs to recover. It is no doubt a rule of 
 law that a coi^poration aggregate can only contract under seal ; so much 
 inconvenience, however, arises from the strict application of the rule, 
 that it was in very early times relaxed with respect to small matters 
 of frequent and ordinary occurrence. The instances are mentioned 
 in Bac. Abr. tit. 'Corporation,' E, Com. Dig. tit. ' Francliises,' F, 12, 13. 
 This relaxation of the rule has been gradually extended, and it may now 
 be considered that the general rule that a corporation aggregate cannot 
 contract except by deed admits of an exception in cases where the making 
 of a certain description of contracts is necessary and incidental to the 
 purposes for which the corporation was created. In most of the earlier 
 of the modern cases the corporations have been plaintiffs, but those cases 
 were decided upon grounds which would be equally applicable had the 
 actions been against them. In the case of The London Gaslight and 
 Gohe Company v. NicholW Lord Chief Justice Best held that assumpsit 
 might be maintained by the company for gas supplied, observing that 
 " it was quite absurd to say that there was any necessity for a contract by 
 deed in such a case." The case of The Mayor, Sc. of Stafford v. Till^, 
 and the judgment of the Court in the subsequent case of T/ie Hast London 
 Waterworks Company v. Bailey^, are direct authorities that corporations 
 may be parties to contracts not under seal. In the latter case, the 
 Lord Chief Justice Best took a distinction between executory and 
 executed contracts, which has not, however, been recognized in subsequent 
 cases, considering that if the contract were executed, the law would 
 imply a promise, and no deed was necessary, as was decided in the 
 
 1 2 Car. & P. 365. = 4 Bing. 75; s. o. 5 Law J. Bep. C. P. 77. 
 
 ' 4 Ibid. 283; s. c. 5 Law J. Rep. C. P. 175.
 
 192 OLAUKE V. GUARDIANS OF OUCKFIELD UNION. [CHAP. II 
 
 case of J'/te Mayor of Stafford v. Till. The power of a coi-poration, 
 for a particular purpose, to maintain an action of assumpsit for breach 
 of an executory contract connected witli the purpose for which the 
 company was constituted, was elaborately argued and deliberately 
 determined in the case of Church v. the Imperial Gaslight and Coke 
 Company, in error. In that case the company had brouglit an action 
 against Church upon an executory contract by them to supply gas, 
 which tlie defendant (Church) refused to accept. In giving the judg- 
 ment of the Court, Lord Denman assumes that it is established that 
 a corporation may sue or be sued in assumpsit upon executed contracts 
 of a certain kind, amongst which are included such as relate to the 
 supply of articles essential to the purposes for which it is created ; 
 and he then considers that there is no sound distinction to be taken in 
 respect of such contracts between those that are executed and those 
 that are executory. In repudiating this distinction, the Court of Queen's 
 Bencli differed from tlie judgment of the Court of Common Pleas, in 
 the case of The East London Waterworks v. Bailey, but in other respects 
 they agreed in that decision. The case of Beverley v. the Lincoln 
 Gaslight and Coke Company, decided about the same time, is more 
 directly in point, as the action in that case was indebitatus assumpsit 
 for goods sold and delivered against the company. The action was 
 for the price of gas-meters, supplied by the plaintiff to the company 
 under a parol contract. All the previous cases were considered by 
 the Court of Queen's Bencli in an elaborate judgment for the plaintiff, 
 Ln which it was decided that the action was maintainable, and the 
 company liable though there was no contract by deed. In The Mayor 
 of Ludlow V. Charlton, decided subsequently to the cases of Beverley 
 V. the Lincoln Gas Cotiipany and Church v. the Imjjerial Gas Company, 
 the Court of Exchequer held that a municipal corporation cannot 
 contract to pay money out of the corporation funds for improvements 
 in the borough except under seal, on the ground that such a contract 
 was not witliin any of the exceptions to the general rule, nor of 
 ordmary occurrence, or directly necessary for the purposes for which 
 tlie corporation was instituted. Upon the same ground, the Court 
 of Queen's Bench held, in the subsequent case of Faine v. the Strand 
 Union, that the plaintiff, who brought an action of assumpsit for 
 work and labour against the guardians of the poor of the Strand 
 Union, to recover a demand for making a plan of one of the parislies 
 in the union, by direction of the board of guardians, but without any 
 contract under seal, was not entitled to enforce such demand, as tlie 
 making the plan of a particular parish was not necessary for the 
 guardians of the union generally, nor incident to the purposes for 
 wliicli they were incorporated. But in the subsequent case of Sanders 
 V. the Guardians of St Neot's Union, the Court held that an action 
 of assumpsit for goods sold, and work and labour, was maintainable
 
 CHAP. Il] CLARKE V. GUARDIANS OF CUCKFIELD UNION. 193 
 
 in respect of a demand by the plaintiff for iron grates, supplied to 
 tlie workliouse by the direction of the guardians, and executed there 
 under a verbal order; and in giving judgment, Lord Denman observes, 
 that the defendants could not be permitted to take the objection that 
 there was no contract under seal, if the work, when done, was adopted 
 by them for purposes connected with the corporation. In the late 
 case of the Copper Miners Company v. Fox it was held, that the company 
 could not maintain an action on an executory parol contract relating 
 to the furnishing of iron rails, on the ground that the contract was 
 not incidental or ancillary to carrying on the business of copper miners, 
 and did not fall within any of the exceptions to the general rule, that 
 a corporation can only bind itself by deed. In giving judgment. Lord 
 Campbell observed, that "had the suliject-matter of this contract been 
 copper, or if it had been shewn in any way to have been incidental 
 or ancillary to carrying on the business of copper miners, the contract 
 would have been binding, though not under seal ; for where a trading 
 company is created by charter, whilst acting within the scope of the 
 charter, it may enter into the commercial contracts usual in such a 
 business in the usual manner." The result of the cases to which I 
 have referred appears to be, that whenever a corporation is created 
 for particular purposes, which involve the necessity for frequently 
 entering into contracts for goods or works essentially necessary for 
 carrying the purposes for which the corporation is created into execution, 
 a demand in respect of goods or works which have actually been 
 supplied to and accepted by the corporation, and of which they have 
 had the full benefit, may be enforced by action of assumpsit, and 
 the corporation will be liable though the contract was by parol only, 
 and not by deed. There is, however, a case decided by the Court 
 of Exchequer upon deliberate consideration given, which I find it very 
 diflicult to reconcile with many of the authorities, and with what I have 
 stated to be the result of the cases to which I have referred. I allude 
 to the case of Lamprell v. the Billericay Union. That was an action 
 of covenant against the guardians of the union to recover the price 
 to be paid, according to the deed, for work done, under a specification, 
 in building a workhouse, and for extra work. The deed provided 
 that no extra work should be allowed for unless done by direction 
 in writing of certain surveyors named in the deed ; much extra work 
 was done under the direction of and adopted by the defendants and 
 their surveyor, but no written directions were given, and the extra 
 work could not be recovered under the deed. The defendants had made 
 many payments on account generally in the progress of the work ; and 
 the plaintiffs proposed to appropriate those payments to the discharge 
 of this claim for extra work ; and it was upon the appropriation of 
 payments that this question arose. The Court considered that, to entitle 
 the plaintiff to appropriate the payments, he must shew that there were 
 F. 13
 
 194) CLARKE V. GUARDIANS OF CUCKFIELD UNION. [cHAr. II 
 
 two debts; one under the deed, and the otlier under a parol contract 
 
 for payment for tlie extra work, to be implied from its being done 
 
 with tlieir assent, and they having adopted and taken the benefit of it ; 
 
 but the Court held, tliat no such contract could be implied in this case, 
 
 as tlie defendants were a corporation, and incapable of making such a 
 
 contract as tliat for tlie extra work by parol. The Court, in that case, 
 
 considered, that notwithstanding the nature of the corporation and the 
 
 purposes for which it existed, it was incapable of contracting otherwise 
 
 than by deed, even for such purposes as tliose in question, which were 
 
 absolutely necessary for carrying into effect the objects of the corporation. 
 
 The ground upon which a seal is required to authenticate the acts of 
 
 corporations is stated in the case of The Mayor of Ludlow v. Gliarlton ; 
 
 it is required as indicating the concun-ence of tlie whole body corporate. 
 
 "The seal is the only authentic evidence of what the corporation has 
 
 done or agreed to do. The resolution of a meeting, however numerously 
 
 attended, is not the act of the whole body. Every member knows he 
 
 is bound by wliat is done under the corporate seal, and by nothing else." 
 
 This, no doubt, is strictly applicable to municipal corporations, and others 
 
 of a similar character, but not so clearly to such a corporation as the 
 
 guardians of a union. By the 4 & 5 Will. 4, c. 76, ss. 21, 23, and 38, 
 
 guardians of a union have the government of the workhouse ; and there 
 
 is a general provision that no acts of the guardians shall be valid except 
 
 at a board when three are present. By the 5 & 6 Will. 4, c. 69, s. 7, 
 
 for the more easy execution of that act, and of the laws relating to 
 
 the poor, the guardians of the poor of every union are made a corporation, 
 
 and may use a common seal. There is, however, no alteration in the 
 
 law as to the power of the guardians at a board of not less than three. 
 
 A board of tliree persons only would have power, both before and after 
 
 tlie guardians were made a corporation, to do all such acts as the whole 
 
 body might do before they wei-e a corporation ; and might make all 
 
 such contracts by parol as were necessary for the purpose of exercising 
 
 tlie powers given to them by the statutes ; but, after they were made 
 
 a corporation for the more easy execution of the law relating to the 
 
 poor, it would seem from that case that they can do no act, except the 
 
 most trivial, nor make any contract except under seal. The case of 
 
 Lainprell v. tlie Billericay Union was followed by two others in the 
 
 same court, that of Diggle v. the London and Blackwall Railway 
 
 Company, and Homersham v. the Wolverhampton Waterworks Company^. 
 
 In l)i(jijle V. the London and Blackwall liailway Company it was held 
 
 that assumpsit for work and labour and materials could not be maintained 
 
 against a railway company upon a patrol contract, though the demand 
 
 was in respect of taking up old rails and substituting new ones ; and it 
 
 was decided upon the same ground. Homersham v. tlie Wolverhmnpton 
 
 Walerwoi-ks Company was a case very similar to the last; the demand 
 
 1 G Exch. Eep. 137; s. c. 20 Law J. Eep. (n.s.) Exch. 193.
 
 CHAP. Il] CLARKE ('. GUARDIANS OF CUCKFIELD UNION. 195 
 
 was for extra work under an implied contract, there being no express 
 contract entered into by three directors, as required by tlie 8 & 9 Vict. 
 c. 16, s. 97. These three cases, and especially that of Lamjtrell v. tlm 
 Billericay Union, are undoubtedly adverse to the claim of the plaintiffs 
 in the present case, and I find it difficult to draw any substantial 
 distinction between them upon the point in question. I may, however, 
 observe that the Court in Lamprell v. the Billericay Union refer to 
 the cases of Tlie Miiyor of Ludlow v. Charlton, Arnold v. the Mayor, 
 (£'c. of Poole^, and Paiite v. the Strand Union, as tlie authorities upon 
 which they rely for the principle of their decision, without adverting 
 to that which seems, according to other authorities, an important and 
 distinguishing circumstance in those cases, that in none of them was 
 the subject-matter of the contract necessary or essential to the very 
 purposes for which the corporation was erected ; nor is the peculiarity 
 of the constitution of such a corporation as the guardians of an union, 
 the object of its creation, and the power of a quorum at a board 
 meeting, adverted to. It may be further remarked, that the case of 
 Arnold v. the Mayor of Poole appears to be an authority against the 
 decision in Lamprell v. tlie Billericay Union, upon the point of appro- 
 priation of the payments. The reason for which a seal was required 
 to authenticate the acts of a corporation seems hardly to exist in 
 much force in respect to the guardians of a poor law union, who 
 by the statute by which they were originally constituted act by 
 resolutions at a board composed of not less than three. In the present 
 case there is sufficient evidence that the work was ordered at a board 
 of the guardians regularly constituted ; that it was performed and adopted, 
 and nothing remained but to pay for it ; but the alleged contract 
 under which it was done, though entered into by the proper authority, 
 was vei'bal only. I greatly regret the present state of the law upon 
 a subject so important. It would, perhaps, have been better, and liave 
 avoided the uncertainty which now exists, if the old rule had never 
 been relaxed ; but being as it is, the question is whether the demand 
 in question comes within any of the recognized exceptions to the general 
 rule. I am disposed to think it does, and that wherever the purposes for 
 which a corporation is created render it necessary that work should 
 be done or goods supplied to carry such purposes into efi'ect, as in 
 the case of the guardians of a poor law union, and orders are given 
 at a board regularly constituted, and having general authority to make 
 contracts for work or goods necessary for the purposes for which the 
 corporation was created, and the work is done, or goods supplied and 
 accepted by the corporation, and the whole consideration for payment 
 executed, the corporation cannot keep the goods or the benefit, and 
 refuse to pay on the ground that though the members of the corporation 
 who ordered the goods or work were competent to make a contract 
 1 4 Man. & G. 8G0 ; s. c. 12 Law J. Rep. (n. s.) C. P. 97. 
 
 13—2
 
 lltd 
 
 SOUTH Of lltKLANl) COLLIERY COMl'ANV V. WADDLE. [CHAP. II 
 
 and hind tlio rest, the formality of a deed or of affixing the seal were 
 wanting, and tlicn say, no action lies, we are not competent to make a 
 parol contract, and we avail ourselves of our own disability. I come to 
 this conclusion (tliough not without much doubt from the autliorities 
 in some respects contrary), as I tliink it is warranted by the cases of 
 Sanders v. the Guardians of St Neot's, Bererky v. the Lincoln Gaslight and 
 Coke Company, Church v. tJi« Imperial Gaslight and Coke Cornpa^iy, and 
 others of the cases to which I have adverted, by the peculiar constitution 
 and purposes of such a corporation as the board of guardians, and by the 
 apparent justice of the case. I, therefore, think that the rule should be 
 
 discharged. 
 
 Rule discharged. 
 
 THE SOUTH OF IRELAND COLLIERY COMPANY 
 r. WADDLE. 
 
 In the Common Pleas, April 29, 1868. 
 
 In the Exchequer Chamber, June 17, 1869. 
 
 [Tieimrled in Law Reports, 3 Common Picas, 463, <£■ 4 Common Pleas, 617.] 
 
 The first count of the declaration claimed damages for breach of an 
 agreement to deliver certain macliinery which the plaintiffs had purchased 
 of the defendants and partly paid for. 
 
 There was also a count for money had and received and money found 
 due upon accounts stated. 
 
 Pleas : 1. That the defendant did not agree as alleged. 2. That the 
 plaintiffs were not ready and willing to accept the goods or to pay for the 
 same according to the terms of the contract. 3. Except as to 500^., 
 never indebted. 4. As to 500^., parcel, &c., payment of that sum into 
 court. Issue thereon. 
 
 Tlie cause was tried before Montague Smith, J., at the sittings in 
 London after last Trinity Term. The plaintiffs were a company 
 incorporated under the Companies Act, 1862, 25 & 26 Vict. c. 89, for 
 the purpose, as expressed in the memorandum of association, of purchasing, 
 renting, or otherwise acquii-ing certain collieries and mines of coal under 
 certain lands therein named, near Carrick-on-Suir, in the county of 
 Kilkenny, and opening up, excavating, mining, working, and utilizing all 
 or any of the said collieries and coal mines and premises, and generally 
 doing and executing all such things and acts as should or might be
 
 CHAP. Il] SOUTH OF IRELAND COLLIERY COMPANY V. WADDLE. 197 
 
 or seem necessary or expedient or incidental to tlie oljjects aforesaid, or any 
 of them. 
 
 By the articles of association, clause 3, it was provided that the 
 business of the company should include the several objects expressed 
 in tlie memorandum of association, and all matters which from time 
 to time might appear to the directors expedient for attaining those 
 objects. 
 
 Clause 4 provided tliat the business should be carried on by or under 
 the management of the directors, subject only to such control of meetings 
 as was provided by those presents. 
 
 Clause 77 was as follows: — "The business of the company shall be 
 managed by the board, who, in addition to the powers and authorities by 
 the statutes or by these presents expressly conferred upon them may 
 exercise all such powers, give all such consents, make all such arrange- 
 ments, and generally do all such acts and things as are or shall be 
 by tlie statutes and these presents directed or authorized to be executed, 
 given, made, or done by the company in meeting, but subject, nevertheless, 
 to the pro-\-isions of the statutes and of these presents, and subject also to 
 such, if any, regulations as are from time to time prescribed by the 
 company in meeting." 
 
 The directors having advertised for tenders for the construction of 
 machinery necessary to enable them to commence working, the defendant, 
 an engineer at Llanelly, on the -Sth of Mai-cli, 1864, ofl'ered to con- 
 struct the required engines and gearing, to be delivered free at Waterford, 
 for 15.50?. 
 
 By a resolution of the board of directors on the 4th of April, 1864, the 
 defendant's tender was accepted, with .50/. additional for tlie erection of 
 the machinery ; the terms of payment to be as follows : — 500/. in cash on 
 the shipment of the pumping-engine ; 500/. by three months bill on 
 sliipment of the remainder of the order ; and 600/. by four months bill on 
 the erection of the engine, itc, and on their being pronounced in working 
 order by tlie company's manager. 
 
 On the 7th of March and 7tli of June, 1865, respectively, the 
 defendant received from the company in cash 300/. and 200/. on account ; 
 but, after considerable delay, the defendant declined to deliver any 
 part of the machinery contracted for, unless security were given for 
 payment of the remainder of the price, and the plaintifl's' works were 
 consequently delayed. 
 
 On tlie part of the defendant it was objected that the contract, not 
 being under the seal of the company, was void as against tliem, and there- 
 fore not binding on the defendant, for want of mutuality ; and the case of 
 £ast London Waterwurhs Company v. Bailerf was relied on. 
 
 Under the direction of the learned judge a verdict was taken for the 
 plaintiffs (damages 500/.), leave being reserved to the defendant to move 
 
 ' 4 Biiig. 283.
 
 198 SOUTH OF lUELAND COLLIERY COMPANY V. WADDLE. [CHAP. II 
 
 to enter a verdict for him or a nonsuit, if the Court should be of opinion 
 that the contract required a seal. 
 
 Bay', in Michaelmas Term last, obtained a rule nisi accordingly. 
 April 29. I'Inlhrk-k (IIud<l/rston, Q.C., with him), shewed cause. 
 Foivell, Q.C., and JJai/, in support of the rule. 
 
 BoviLL, C.J. I am of opinion that the plaintiffs are entitled to 
 the judgment of the Court, and that the rule should be discharged. The 
 plaintiffs are a corporation established, according to their memorandum of 
 association, for the purpose of acquiring collieries and mines in the south 
 of Ireland, and working the same, and selling the produce, and generally 
 of doing all such acts and things as should be necessary for the purpose 
 of carrying out the objects of their association or any of them. This 
 company, therefore, is iu the nature of a trading company. The mode of 
 carrying on tlieir business is defined in article 4 of the memorandum of 
 association ; and the duties of the directors are defined by article 77. 
 Subject, therefore, to exceptions which do not apply to this case, this is a 
 coi-poration established for carrying on business under the control and 
 management of tlie directors. Tlie contract declared iipon is admitted to 
 have been made by the directors with the defendant. The objection is, 
 that it is not under the corporate seal of the company ; and it is contended 
 on the defendant's behalf, that, by reason qf the absence of a seal, there is 
 no mutuality, that the plaintiffs ai-e not bound by it, and therefore are not 
 entitled to sue upon the contract. It appears further that the contract 
 had been partly performed, and that the company were ready and willing 
 to perform the rest. It had in fact been adopted and acted upon by both 
 parties. The objection is entirely a technical one ; but, though technical, 
 if it be in accordance with law, the Court is bound to give effect to it. 
 Originally all contracts by corporations were required to be under seal. 
 From time to time certain exceptions were introduced, but these for a 
 long time had reference only to matters of trifling importance and frequent 
 occurrence, such as the hiring of servants, and the like. But, in progress 
 of time as new descriptions of corporations came into existence, the Courts 
 came to consider whether these exceptions ought not to be extended in 
 the case of corporations created for trading and other purposes. At first 
 there was considerable conflict; and it is impossible to reconcile all 
 the decisions on the subject. But it seems to me that the exceptions 
 created by the recent cases are now too firmly established to be questioned 
 by the earlier decisions, which, if inconsistent with them, must I think be 
 held not to be law. These exceptions apply to all contracts by trading 
 coi-porations entered into for the purposes for which they are incorporated. 
 A company can only carry on business by agents, — managers and others ; 
 and if the contracts made by these persons are contracts which relate to 
 olijects and purposes of the company, and are not inconsistent with 
 ' The arguments are omitted. Et.
 
 CHAP. Il] SOUTH OF IRELAND COLLIERY COMPANY V. WADDLE. 199 
 
 the rules and regulations -which govern their acts, they are valid and 
 binding upon the company, though not under seal. It has been urged 
 that the exceptions to the general rule are still limited to matters of 
 frequent occurrence and small importance. The authorities, however, 
 do not sustain that argument. It can never be that one rule is to obtain 
 in the case of a contract for 50^. or 1001., and another in the case of 
 a contract for 50,000?. or 100,000/. I will in the first instance refer 
 to the case of Henderson v. Australian Royal Mail Steam Navujation 
 Compani/ ', where, though one of the learned judges somewhat difiered as 
 to the application of the modern rule, yet all aifirmed its existence as well 
 as its propriety. Wightman, J., said : " I adhere to the opinion which I 
 expressed in Clarke v. Cuchfield Union ^, ' that the general rule that 
 a corporation aggregate cannot contract except by deed, admits of 
 an exception in cases where the making of a certain description of 
 contracts is necessary and incidental to the purposes for which the 
 corporation was created.' " And, after adverting to the ancient rule and 
 to the earlier and more trifling instances of its relaxation, he goes on : 
 " But, in later times, the decisions have sanctioned a much more 
 extensive relaxation, rendered necessary in consequence of the general 
 establi.shment of trading coi'porations. The general result of those cases 
 seems to me to be, that, whenever the contract is made with relation 
 to the purposes of the corporation, it may, if the corporation be a trading 
 one, be enforced, though not under seal." And Erie, J., agreed, "on the 
 ground that the contract was made for a purpose directly connected with 
 the object of the incorporation," viz., the carrying on trade. Further on, 
 the same learned judge says : " I cannot think that the magnitude or the 
 insignificance of the contract is an element in deciding cases of this sort. 
 No doubt, when the exception originated, it was applied only to small 
 matters, such as the appointment of servants, being all that municipal 
 corporations required. But, as soon as it became extended to trading 
 corporations, it was applied to drawing and accepting bills to any amount ; 
 and this shews that insignificance is not an element. Neither, I think, is 
 frequency. The first time a company makes a contract of any kind, that 
 contract must have been unprecedented. The question is, I think, 
 whether the contract in its nature is directly connected with the purpose 
 of the incorporation." And Crompton, J., agreed in the principles laid 
 down by the other two judges, but seemed to doubt whether it would not 
 have been more proper to decide in conformity with some of the earlier 
 cases in the Exchequer. But he says : " I perfectly agree in the principles 
 laid down by my Brothers, and more especially I concur in that important 
 principle suggested in Broutjlttoii v. Manchester Waterworks Compani/^, that 
 a modern incorporation incorporated for trading purposes may make binding 
 contracts in furtherance of the purposes of their corporation, without using 
 
 ' 5 E. & B. 409 ; 24 L. J. (Q. B.) 322. ^ 1 Bail C. C. 85 ; 21 L. J. (Q. B.) 34'J. 
 ' 3 B. & A. 1.
 
 200 SOUTH OF IRELAND COLLIERY COMPANY V. WADDLE. [CHAP. II 
 
 their seal." Lord Campbell was not present when tliat case was decided. 
 But, in the follo\\ing year, reference being made to it in a case of RnUer v. 
 Electric Telegraph Company ', his Lordsliip said : " I was not a party 
 to that judgment ; but I highly approved of it. The decision in it must, at 
 all events, be binding on us." We have been much pressed by several 
 coses in the Court of Exchequer. But, in Australian Royal Mail Steam 
 Naviyalion Company v. Marzetti', — a case which occurred a few days after 
 tiie case first mentioned, — the rule I have referred to was unanimously 
 adopted. " It is now perfectly established," said Pollock, C. B., " by 
 a series of authorities, that a corporation may with respect to those 
 matters for which they are expressly created deal without seal. This 
 principle is founded on justice and public convenience, and is in accordance 
 with common sense." And Martin, B., said: "The case of Fishmongers' 
 Company v. Robertson^ is precisely in point, and, if it were not, good sense 
 would lead us to tlie same conclusion." These principles are now too firmly 
 settled to be shaken. The case of London Dock Company v. Sinnotf is 
 distinguishable, on tlie ground whicli was alleged and adopted by the 
 Court, viz., that it was not a contract of a mercantile character ; it was 
 not a contract for work to be done by the defendant for the company, but 
 a contract to enter into another contract. At all events, if it is not 
 distinguishable, it is contrary to the other cases ; and it certaiiily was not 
 intended to throw any doubt upon them. 
 
 In most cases, a trading company must carry on its business by means 
 of agents ; and in those cases there is an implied authority in the agents 
 to make contracts on behalf of the company in the ordinary course of 
 business. The business of a trading corporation could not otherwise be 
 carried on. In the present case it does not seem to me to be necessary to 
 go the length of relying upon the general exception to which I have 
 adverted, inasmuch as the very constitution of the company is that 
 the directors should have power to make contracts such as was made here. 
 In pursuance of the 77th article of the memorandum of association, the 
 directors have carried on the business of the company and have entered 
 into this contract. Mr Day says there is nothing in the articles of 
 association to dispense with the ordinary rules of the common law or with 
 the act of parliament. But I do not assent to that remark. The 
 memoi-andum and articles of association are required by the Companies 
 Act, 1862, 25 ife 2C Vict. c. 89. The provisions on the subject are con- 
 tamed in Part I. Tlie 14th section provides that the memorandum 
 of association may, in the case of a company limited by shares, and 
 shall, in the case of a company limited by guarantee or unlimited, be 
 accompanied, when registered, by articles of association signed by the 
 subscribers to the memorandum of association, and prescribing such 
 regulations for the company as the subscribers to the memorandum of 
 
 ' 6 E. & B. 341 ; 26 L. J. (Q. B.) 4fi. = 11 Ex. 228 ; 24 L. J. (Ex.) 273. 
 
 » o M. & G. 131. ■" 8 E. & B. 317 ; 27 L. J. (Q. B.) 129.
 
 CHAP. Il] SOUTH OF IRELAXD COLLIERY COMPANY V. WADDLE. 201 
 
 association deem expedient : and the articles may adopt all or any of tlie 
 provisions contained in Table A. in the first schedule thereto. And, when 
 we refer to Table A., we tind that one of tlie matters with regard to 
 which the articles may make regulations is the powers of the directors. 
 Article 55 is as follows : — "The business of the company shall be managed 
 by the directors, who may pay all expenses incurred in getting up and 
 registering the company, and may exercise all such powers of the company 
 as are not by tlie foregoing act, or by these articles, required to be 
 exercised by the company in general meeting, subject nevertheless to any 
 regulations of these articles, to the provisions of the foregoing act, and to 
 such regulations, being not inconsistent with the aforesaid regulations 
 or provisions, as may be prescribed by the company in general meeting." 
 By s. 15 of tlie act, it is enacted that, in the case of a company limited by 
 shares, if the memorandum of association is not accompanied by articles of 
 association, or in so far as the articles do not exclude or modify the 
 regulations contained in Table A., the last-mentioned regulations shall, so 
 far as the same are applicable, be deemed to be the regulations of the 
 company in the same manner and to the same extent as if they had been 
 inserted in articles of association, and the articles had been duly 
 registered." Tliis is a quasi incorporation under the act and subject to its 
 provisions. If there had been no articles of association, those given in the 
 schedule would govern its dealings. By s. 16 it is provided that the 
 articles of association, when registered, " shall bind the company and the 
 members thereof to the same extent as if each member had subscribed his 
 name and affixed his seal thereto, and there were in such articles contained 
 a covenant on the part of himself, liis heirs, executors, and administrators, 
 to conform to all the regulations contained in such articles, subject to tlie 
 provisions of this act." This is the constitution of the company itself by 
 which all its members are bound. I am of opinion, therefore, that 
 the directors were authorized to make the contract in question by force of 
 the act of parliament and of the articles of association, and that there are 
 no provisions in either wliich required it to be under seal. Upon the 
 general ground therefore I first adverted to, as well as upon the latter 
 and more limited ground, I am of opinion that the contract entered into 
 by the directors witli the defendant in this case was valid witliout seal. 
 
 Byles, J. I am of the same opinion. It is impossible to reconcile all 
 the dicta upon this subject. It would be difficult, perhaps, to reconcile all 
 the decisions. But I think this is a very plain case. The company are 
 not defendants in the action. The defendant is a natural person. He 
 has made a contract with the company which clearly would bind him if he 
 had received the consideration. He has received 2001. and 300^. on 
 account; and he would have received the rest of the money if he had 
 performed his contract. The money he has received he is entitled to 
 keep, unless the company has some equitable riglit to recover it back.
 
 202 SOUTH OF IRELAND COLLIERY COMPANY V. WADDLE. [CHAP. II 
 
 His objection to the inaiutoiiance of this action would liave been equally 
 good if lie iuul been paid the whole 1500^. It is very like the case of 
 risl,mo7i</ers' Coiiijjani/ v. liohertsoii', where the company were held 
 entitled to sue upon a contract not under seal, where the whole had 
 been executed on tlieir part. It is true that that case provoked an 
 expression of dissatisfaction from Lord Campbell, C. J. in Copper Miners' 
 Coiiipany v. Fox^ : but that case did not raise the point : the plaintiffs 
 were a company incorporated for the purpose of dealing in copper ; and 
 the contract sued upon was not ancillary to that purpose. Opposed 
 to this, however, is the observation of Martin, B., in Australian Jioi/al 
 Mail Steam Navigation Coinpany v. Marzetti^, — "The case of Fishmongers' 
 Company v. Jiobertson\ is precisely in point; and, if it were not, good 
 sense would lead us to the same conclusion. It cannot be supposed that, 
 w^liere a corporation has done everytliing they were bound to do, and the 
 other party has obtained the money, the latter is to be at liberty to break 
 his contract." There is, therefore, the authority of the Court of Exche- 
 quer, which I was not aware of before, for the position laid down in 
 Fishmongers' Company v. liohertson^. The observation of Lord Campbell, 
 C. J., in Copper Miners' Company v. Fox'^ was certainly extrajudicial : the 
 objection there was not the want of a mere formal act; but the contract 
 itself was entirely out of the scope of the company's incorporation. My 
 Lord has already referred to the articles of association of this company, 
 which necessarily imply that they were to have machinery for the working 
 of their mines. Upon this ground, therefore, independently of the 
 Other and more general ground, I think the plaintiffs are entitled to 
 retain their verdict. 
 
 Montague Smith, J. I am of the same opinion. Tlie general rule, 
 no doubt, is, that a corporation contracts under seal. But, from very 
 early times, exceptions have been allowed in the case of municipal 
 and ecclesiastical corporations, to enable them, without the formality of a 
 seal, to transact matters of minor importance and of daily occurrence. 
 In the case of trading corporations, these exceptions have step by step 
 been extended, and have now grown larger than the rule. The modern 
 doctrine, as I understand it, is, that a company which is established for 
 the purpose of trading may make all such contracts as are of ordinary 
 occurrence in that trade witliout the formality of a seal, and that the seal 
 is required only in matters of unusual and extraordinary character which 
 are not likely to arise in the ordinary course of business. In Dunstan v. 
 Imperial Gas Light Company \ which was decided at a time when trading 
 companies were becoming of great importance. Lord Tenterden says : " I 
 wish to be understood as by no means deciding the question whether third 
 
 ' 5 M. & G. 131. 2 15 Q B 229 ; 20 L. J. (Q. B.) 174. 
 
 » 11 Ex. 228, 23.5 ; 24 L. J. (Ex.) 273. ^ IC Q. B. at p. 237. 
 ' 3 B. & Ad. 125.
 
 CHAP. Il] SOUTH OF IRELAND COLLIERY COMPANY V. WADDLE. 203 
 
 persons who may sell coals or other materials to the company, or who may 
 be employed by them as servants or workmen, may or may not maintain 
 an action against them for remuneration, though the contract was not 
 under seal. This is a corporation established for the purpose of carrying 
 on trade and manufactures, and may, therefore, difi'er from others as to its 
 powers of contracting, and its remedies upon contracts relating to the 
 purposes for which the company is formed." And Taunton, J., said : "We 
 are not called upon to decide the absolute question wliether a corporation 
 has the power of contracting otherwise than under seal." This shews the 
 inclination of the minds of these two learned Judges, both of whom were 
 especially conversant with corporation law. In Henderson v. Australian 
 Royal Mall Steam Naviyation Company', all the judges adopt the rule 
 suggested in Biinstan v. Imperial Gas Liyht Company", and hold it to be 
 law; Wightman, J., who was an extremely cautious judge, saying: "The 
 result of the cases seems to me to be, that, whenever the contract is made 
 with relation to the jaurposes of the incorporation, it may, if the corpora- 
 tion be a trading one, be enforced though not under seal." The rest 
 of the Court lay down the rule in equally plain and simple terms : and I 
 entirely agree with them. Applying tlie principle of that case to the 
 present, — a pumping-engine was a thing pi'oper and necessary for the 
 purposes for which this company was incorporated, and therefore the 
 contract for it was enforceable though not under seal. This decision, 
 no doubt, conflicts with J^ast London Waterworks Company v. Bailey^. 
 The majority of the Court of the Queen's Bench in effect treat that case 
 as contrary to the current of decisions. The result of those decisions and 
 the present is that £ast London Waterworks Company v. Bailey' can 
 no longer be considered to be law. 
 
 Bule discharyed. 
 
 The Defendant appealed from this decision. 
 
 Maurice Powell ( W. 11. Clay with him), argued the case for the 
 defendant. 
 
 Huddleston, Q.C. (Philbrick with him), for the plaintiffs, was not 
 called upon. 
 
 CoCKBURN, C. J. We are asked to overrule a long series of decisions 
 in all courts, which, in accordance with sound sense, have held that the 
 old rule as to corporations contracting only under seal does not apply to 
 corporations or companies constituted for the purpose of trading, and we 
 are invited to re-introduce a relic of liarbarous antiquity. We are all of 
 opinion that the judgment of the Court of Common Pleas ought to be 
 affirmed. It is unnecessary to say more tlian that we entirely concur in 
 the reasoning and authority of the cases referred to in the judgment 
 of Bovill, 0. J., which seems to us to exhaust the subject. In early times, 
 
 1 5 E. & B. 409 ; 24 L. J. (Q. B.) 322. = 3 B. & Ad. 125. ' 4 Bing. 283.
 
 204, WELFORD V. BEAZELY. [CHAP. 11 
 
 no doubt, corporations could only, subject to the well kno^\^l exceptions, 
 bind themselves by contracts under seal. And for some time that rule 
 was applied to corporations which were formed for the purpose of carrying 
 on trade. But the contrary has since been laid down by a long series of 
 cases, and may now be considered settled law. The machinery contracted 
 for in tiiis case was clearly necessary for the purpose for which tlie 
 company was formed, viz. the working of coal-mines. 
 
 Kelly, C. B., Channell, B., Lush, and Hayes, JJ., and Cleasby, B., 
 
 concurred. 
 
 Jtidt/ment affirmed . 
 
 SECTION II. 
 
 STATUTE OF FRAUDS. 
 
 I 
 
 WELFORD V. BEAZELY. 
 In Chancery, May 23, 1747. 
 
 [Reported in 3 Atkyns, 503.] 
 
 A QUESTION arose upon the statute of frauds and perjuries, whether a 
 person subscribing a deed as a witness only, which she knew the contents 
 of, could be said to have signed it within the meaning of that statute. 
 
 LoRU Chancellor, 
 
 The meaning of the statute is to reduce contracts to a certainty, in 
 order to avoid perjury on the one hand, and fraud on the other, and there- 
 fore, both in this court and the courts of common law, where an agreement 
 has been reduced to such a certainty, and the substance of the statute has 
 been complied with in the material part, the forms have never been 
 insisted upon. 
 
 The word jmrty in the statute is not to be construed party as to a 
 deed, but person in general, or else what would become of those decrees 
 where signing of letters, by which the party never intended to bind 
 himself, has been held to be a signing within the statute. 
 
 There have been cases where a letter written to a man's own agent, 
 and setting forth the terms of an agreement as concluded by him, has 
 been deemed to be a signing withiii the statute, and agreeable to the 
 provision of it. 
 
 ' See The Companies Act, 1867 (30 & 31 Vict. c. 131), s. 37. 
 
 See also Young v. Corpvration of Itmjal Leamington .S>a, 8 App. Cas. 517; and 
 Scott V. Clifton School Board, 11 Q. B. D. 5U0. Ed.
 
 SECT, it] FOWLE V. FREEMAN. 205 ' 
 
 Lord Chancellor denied the general doctrine as laid down in Proc. in 
 Chan. 402, Baivdcs versus Amhurst', though true as applied to tliat case by- 
 Lord Cou'per, and said the dillerence betwixt the two cases was, tliat the 
 writing there, thougli all in the father's hand, was only a sketch of an 
 agreement not settled or confirmed by the parties ; but here the defendant 
 signed it as a complete agreement, and, as she knew the contents, is to be 
 bound liy it in tlie present case*. 
 
 * The defendant preWoua to the marriage of her daughter with Welford agreed to 
 give her a marriage portion of lOOOi. By marriage articles (to which the defendant 
 was not a party), it was agreed that the lOOOJ. should be vested in trustees for certain 
 purposes therein mentioned. The defendant was a witness to the articles. Afterwards 
 the defendant took Welford into partnersliip with her, and the above lOOOL was agreed 
 between Welford and herself to be a part of his share of the capital, and she gave 
 him credit for it. It was decreed, that the 1000/. should be paid to the trustees upon 
 the trusts declared by the marriage articles. Beg. Lib. B. 1746. fol. 355. 
 
 FOWLE V. FREEMAN. 
 
 In Chancery, March 8, 1804. 
 
 [Reported in 9 Veseij, 351.] 
 
 The defendant having advertised a freehold estate for sale, the plaintiff 
 wrote to him ; offering £27,500 ; which produced a letter from the 
 defendant, dated the 1st of March, 1803 ; stating, that, provided the 
 plaintiff would agree with the tenant as to the terms, upon which he 
 should quit, the defendant would accept the offer, and would close his 
 agreement with the plaintiff, notwithstanding any more advantageous 
 offer in tlie interim ; and that the defendant would come upon the spot 
 witli his attorney to draw up the agreement properly any day after that, 
 wliich the plaintiff would appoint. 
 
 The plaintiff and the tenant not coming to tenns, a meeting afterwards 
 took place between the plaintiff and defendant, at which, after some 
 negotiation, the defendant wrote and signed a paper as follows : 
 
 "March 12th, 1803. I agree to sell to Mr. Fowle, my estate, tithes, 
 and manor at Chute Lodge, together with the woods, trees, and fixtures, 
 (e.xcept Cadley Cottage,) for the sum of X27,000, upon the following 
 conditions." 
 
 Then followed the conditions in favour of Mr. Cooke, the tenant. 
 This paper was not signed by the plaintiff. It was signed by the 
 
 1 On a marriage treaty, the intended husband, and the young lady's father, went 
 to a counsellor's chambers to have, in consideration of the portion the father proposed 
 to give, a settlement drawn ; minutes of agreement were taken down in writing by the 
 counsel, and given by him to his clerk, to be drawn up in form: the next day the father 
 dies, and the day following the marriage was solemnized: this agreement, notwith- 
 standing these preparations, was held by Lord Cou-per to be within the statute of 
 frauds and perjuries. Tiairdi's versus Ainhiirst, Pr. Ch. 402. 2 Ch. Rep. 284.
 
 206 FOWLE V. FREEMAN. [CHAP. II 
 
 dcfeiulant : who, in the same pajiev, subjoined a letter to his solicitor; 
 desirin" him to prepare a proper agreement for Mr. Fqwle and him 
 to si"ii, and to deliver to the beai-er an abstract of his title deeds. 
 
 The defendant afterwards refusing to complete the purchase, and 
 countermanding his direction to the solicitor, the bill was filed ; praying a 
 specific performance. 
 
 The defendant resisted the performance ; first, on the ground, that the 
 memorandum and letter were sigiied by him, not as an agreement for the 
 sale, but merely as instructions for such agreement ; the plaintiff not 
 having signed the memorandum, nor done any other act on his part 
 to bind himself. The second ground was, that the memorandum was 
 signed by him under the eflect of the misrepresentation of the plaintiff as 
 to Cooke s claims. 
 
 Mr. Romilbj, for the plaintiff, contended upon the Statute of Frauds', 
 that, if the agreement was signed by the party to be bound, it would do ; 
 according to Coleiiuin v. Duck'. 
 
 Mr. Alexander and Mr. Stanley for the defendant. — Independent of 
 the misrepresentation, there is no agreement in this case. TJpon all the 
 circumstances the defendant never meant to be bound alone ; nor, till an 
 agreement should be signed by both parties, according to the directions at 
 the bottom of this paper. He never meant this to be delivered as an 
 agreement. It is clear from the letter, he meant to have an agreement 
 binding on both parties, and to have the aid of his solicitor. This is no 
 more an agreement than the paper in Matheivs v. Warner^ was a will. 
 Prima facie it is not to be taken, that a man means to bind himself ; 
 leaving the other party at liberty ; and circumstances, shewing that the 
 paper was only a plan, are strong to shew, he did not mean to bind 
 himself. He had a right to introduce many stipulations ; but according 
 to the plaintiff's argument he could not have added any thing ; or made 
 even tlie slightest variation. If tliis paper was to be a binding agreement, 
 why did not the Plaintiff, who was present, sign it : why did it remain as 
 a mere paper of instructions in the defendant's possession 1. 
 
 Mr. Eomilly in reply. — This Court will decree a specific performance, 
 though there is no agreement in writing ; if there is evidence in writing, 
 containing all the terms of the agreement : in the case even of a mere 
 letter to an agent, saying, he had agreed to sell the estate. If this does 
 not bind, innumerable decisions, upon letters, by which the parties did not 
 mean to be bound, as agreements, must be set aside. 
 
 The Master of the Rolls. 
 
 The objections made by the defendant are, 1st, that, there is no 
 
 agreement binding the parties : 2dly, that, supposing there is a binding 
 
 agreement, the defendant is not to perform it; because a term was 
 
 omitted, which he would have inserted but for the misrepresentation 
 
 ' Stat. 29, Ch. 2. c. 3. "-5 Vin. 527. » 4 Ves. 186.
 
 SECT. II] LAYTIIOARP V. BRYANT. 207 
 
 of the plaintiff. A.? to the first objoction, it i.s clear that early in the 
 negotiation they had agreed, upon all but the terms to which the tenant 
 was to be entitled from the purcliaser. The price was agreed upon. 
 A meeting took place in order to settle those terms ; the only thing 
 remaining : that is, for the purpose of settling the agreement. At that 
 meeting the terms are settled ; and, if there is no objection .upon the 
 Statute of Frauds, what passed would have amounted to an agreement. 
 Then the terms are reduced to writing. The whole was copied out fairly 
 by the defendant, and he signs it. There is no doubt, it was a complete 
 agreement so far. Tlie question is, whetlier tlie whole effect of it is 
 suspended by adding to it a letter to his attorney ; desiring him to 
 prepare a more formal instrument. It is impossible, that letter could 
 have such an effect. If it had, though that formal agreement had been 
 prepared, he would not have been obliged to sign it. He might have sold 
 the estate the next day for a higher price. At least it amounts to tliis ; 
 that, if prepared, he should execute that more formal agreement. The 
 attorney could not introduce the least variation by his direction. He liad 
 bound himself so far, that these should be the terms introduced ; just like 
 a letter, intended to be carried into execution by a more formal agreement; 
 but he repents ; he is bound by his letter, by his proposal. There have 
 been decrees, founded merely upon letters, proposals, never intended 
 at the time to be a complete, final, agreement. It might as well be 
 contended, that, if there was a reference to deeds, to l)e formally executed, 
 there is no agreement ; but that is to be by the deed. 
 
 Upon the other point the Master of the Eolls declared his opinion 
 upon the evidence, that the charge of misrepresentation was not made out. 
 
 The cau.se ended in a reference to the Master, to see, whether a good 
 title could be made. 
 
 LAYTHOARP v. BRYANT. 
 
 In the Com.mox Pleas, April 30, 183G. 
 
 [Heported in 2 Bin(jham, New Cases, 735.] 
 
 This was an action against the Defendant to recover damages for loss 
 occasioned to the Plaintiff by the Defendant's refusing to pay for certain 
 leasehold premises he had purchased at an auction, on the 3d of December 
 183.3, for Ull. 
 
 The particulars and conditions of sale announced, that the lease and 
 goodwill of the premises, situate in Stoke Neximigton, in which the coke, 
 coal, and seed trades had been carried on, would be peremptorily sold 
 by auction by Mr. Thomas Ross, at the Auction Mart, on the 3d of 
 December, by order of ]\Ir. TT. Laythoarp, the proprietor, retiring from 
 the trade.
 
 208 LAYTHOARP V. BRYANT. [CHAP. II 
 
 The Defendant signed ;i inemorandum of tlie purchase at the back of a 
 paper containing the particuhirs and conditions of sale, but, being known 
 to tlie auctioneer, was not required to pay any deposit. On tlie 12th of 
 December tlie Plaintiff's solicitor sent Defendant an abstract of the 
 Plaintiff's title, and by letter called on him to proceed with the purchase, 
 when the Defendant, saying he had only bid at the Plaintiff's request, 
 refused to complete the purchase, and returned the abstract. An 
 assignment of the lease, prepared by the solicitor of the ground landlord, 
 accompanied with a letter from the Plaintiff's solicitor, was then sent to 
 the Defendant: this he also returned, still refusing to complete the 
 contract, but making no objection to the title. The Plaintiff thereupon 
 sold the premises again, for 194^. 5s., and brought this action to recover 
 the difference between that sum and iilL, the price which the Defendant 
 had agreed to pay. 
 
 A verdict having been found for the Plaintiff, 
 
 Atcherley, Serjt., pursuant to leave reserved at the trial, moved to set 
 aside the verdict, and enter a nonsuit instead, on the ground that the 
 Plamtiff's name was not in the contract, which appeared to be made with 
 Ross the auctioneer : that it was not binding on the Plaintiff ; that 
 therefore, for want of mutuality, the contract was inoperative ; and also 
 as not being signed pursuant to the fourth section of the Statute of 
 Frauds. He relied on Lawrenson v. Butler\ where Lord Redesdale refused 
 to enforce a specific performance, on the ground, that without a signature 
 to bind the vendor there was no mutuality in the contract ; and said, 
 " I confess I have no conception that a Court of Equity ought to decree a 
 specific performance in a case where nothing has been done in pursuance 
 of the agreement, except where both parties had by the agreement a 
 right to compel a specific performance according to the advantages which 
 it might be supposed that they were to derive from it ; because otherwise 
 it would follow that the Court would decree a specific performance where 
 the party called upon to perform might Ije in this situation, that if the 
 agreement was disadvantageous he would be liable to the performance, and 
 yet, if advantageous to him, he could not compel a performance. This is 
 not equity as it seems to me. If, indeed, there was a concealment, or an 
 ignorance of the facts on the one part, and that thereby the other party 
 was led into a situation from whence he could not be extricated, then he 
 would have a right to have the agreement executed cy j^res ; that is, a 
 new agreement is to be made between the parties." 
 
 In O'Rourke v. PercevaV, Jjovd- Manners approved of that decision; 
 and in Martin v. Mitchell^, Sir W. Grant says, " When one party having 
 entered into a contract that has not been signed by the other party, after- 
 wards repents, and refuses to proceed in it, I should have felt great 
 difficulty in saying that he had not a locus pe.nitentim, and was not at 
 liberty to recede until the other had signed, or in some manner made it 
 1 1 Sch. & Lefr. 13. = 2 BaU & Beatty, 58. = 2 Jac. * Walk. 428.
 
 SECT. Il] LAYTHOARP V. BRYANT. 209 
 
 binding upon himself. How ca!i the contract be complete before it is 
 mutual ; and how can it be complete as to tlie one and not as to the other 1" 
 
 A rule ni.si liaving been granted, 
 
 Bonipas, Serjt. and Steere shewed cause. It sufficiently appears from 
 the particulars of sale, that Ross was acting as agent to the Plaintiff, and 
 that the Plaintiff was a party to the contract. The contract is complete 
 when the auctioneer's hammer falls; Payne v. Cave\ And a court of 
 equity will enforce specific performance, where there is an express under- 
 taking on the part of the purchaser : Palmer v. Scoti^. Under the fourth 
 section of the Statute of Frauds, all that is requisite is, that the agree- 
 ment should be in writing, and signed by the party to be charged. It is 
 true that to constitute an agreement, the consideration must appear ; 
 Wain V. Warlters^ ; but an objection on the ground of want of mutuality 
 has never been made before. Agreements similar to the present have 
 been repeatedly enforced in courts of equity, even under the 17th section 
 of the Statute of Frauds, which enacts that no contract for the sale of 
 merchandise shall be good, unless upon a part delivery, a payment of 
 earnest, or a note in writing of the bargain " made and signed by the 
 parties to be charged by such contract, or their agents : whereas the 4th 
 section only enacts that no action shall be brought upon any sale of lands, 
 unless the agreement on which such action shall be brought, or some note 
 thereof shall be in writing, and signed by the party to be charged there- 
 with, or some person thereunto by him lawfully authorised. In Buchhouse 
 V. Crosby'^, the Lord Chancellor said, " he had often known the objection 
 taken, that a mutual contract in writing ought to appear on both sides ; 
 but that that objection had as often been overruled." In Seton v. Slade^, 
 Lord Eldon said, " This agreement is signed by the defendant only ; but 
 that makes him within the statute a party to be charged." In Coles v. 
 Trecothick", it is said to have been laid down by Lord Ilardtvicke, " that it 
 is not necessary the identical agreement should be signed ; but any note or 
 memorandum will do." Tawney v. Growther^, and Uatlon v. Grey*, 
 establish the same principle. Lawrenson v. Butler goes only to the point 
 of specific performance, not to the validity of the contract, and it is the 
 first case in which any doubt has been raised. But in Lord Ormond v. 
 Anderson^ Lord Manners says, "an objection has been made to the 
 execution of this agreement, on the ground that it has not been signed by 
 the plaintiff, and that the defendant could not have enforced it against the 
 plaintiff. I am very well aware, that a doubt has been entertained by a 
 judge in this Court of very high authority, whether courts of equity 
 would specifically execute an agreement where one party only was bound. 
 There exists no provision in the Statute of Frauds to prevent the 
 execution of such an agreement ; and Sir James Maiisfield, who certainly 
 
 1 3 T. E. 148. 2 1 Euss. & Mylne, 391. ^ 5 East, 10. 
 
 ■• 2 Equ. Cas. Abr. 33. » 7 Ves. 275. " Ves. 2-,0. 
 
 ' 3 Br. Ch. Cas. 101—318. « 2 Br. Ch. Cas. IGl. » 2 Ball & Beatty, 370. 
 F. 14
 
 210 LAYTHOARP V. BRYANT. [CHAP. II 
 
 had great experience in courts of equity, lays it down in tlie case of 
 Allen V. Bennett, that a contract signed by one party would be enforced in 
 equity against that party, and that sucii was the daily practice of that 
 Court." And the same view was taken by Sir W. Grant who says in 
 Western v. RusselV, "after the cases that have been determined, I sliould 
 hardly be at liberty, notwithstanding the considerable doubt thrown upon 
 that point by Lord Redesdale, to refuse a specific performance upon the 
 ground that there was no agreement signed by the party seeking a 
 performance." In courts of law the name of the purchaser, written by 
 tlie auctioneer acting as his agent, has always been held sufficient to bind 
 him : Emmerson v. Ileelis' : and here, the Plaintifl's name was in the 
 conditions of sale. In Allen v. Bennett' it was held that an order for 
 goods, written and signed by the seller in a book of the buyers, but not 
 naming the l>uyers, might be connected with a letter of the seller to his 
 agent, mentioning the name of the buyer, and with a letter of the buyer 
 to the seller, claiming the performance of the order, to constitute a 
 complete contract within the Statute of Frauds. And Sir J. Mansfield 
 C.J. said, "It was then objected, that one party who has not signed, is not 
 bound ; but the fact was the same in the cases of Eye.rton v. Matthncs, 
 and Champion v. Plummer, and the objection was never taken in either of 
 those cases ; but the whole of this case supposes that the plaintiff had 
 agreed. Suppose he has not contracted by writing, he has by parol, and 
 lie is bound in honour; and it has never yet been decided, that an 
 obligation in honour would not be a good consideration. All these cases, 
 Egerton v. Matthews, Saunderson v. Jackson and Champion v. Plummer, 
 suppose a signature by the seller to be sufficient, and every one knows it is 
 the daily practice of the Court of Chancery to establish contracts signed 
 by one person only ; and yet a court of equity can no more dispense with 
 the Statute of Frauds, than a court of law can : there is no reason there- 
 fore to set aside the verdict, and the rule must be discharged." 
 
 In the present case, the letters of the Plaintiff's attorney upon sending 
 the abstract and the assignment, may, according to the foregoing decision, 
 be connected with the Defendant's signing the particulars of sale, and 
 constitute an agreement binding on the Plaintiff, even according to the 
 view taken by the Defendant's counsel. 
 
 Atcherley and Busby, in support of the rule. 
 
 In order to bind a purchaser of real estate, there must, under the 4th 
 section of the Statute of Frauds, be a mutuality in the contract, as well 
 as a consideration expressed in writing. Without those ingredients, there 
 can be no agreement ; and though the 1 7 section of the statute requires 
 only a note of the bargain upon a sale of chattels, the 4th section, on a 
 sale of real property, requires a note of the agreement. Here, upon the 
 face of the particulars, the property appears to be sold by Ross the 
 auctioneer, not by the Plaintiff, and the Plaintiff, having omitted to sign, 
 ' 2 Ves. & Beames, 192. = 2 Tauut. 38. ^ 3 Taunt. 169.
 
 SECT. Il] LAYTHOARP V. BRYANT. 211 
 
 there is no agreement between him jukI the Defendant. There is nothing 
 to tix tlie Plaintiff"; notliing on which the Defendant could have sued him 
 for a breach of contract. The letters of the Plaintiff's attorney accompany- 
 ing the abstract and the assignment of the lease, are mere oflers, and not 
 an engagement to sell. The authorities relied on for the Plaintiff are 
 either cases in equity where the question has turned on specific performance, 
 or questions on the 17th section of the statute. Now, upon a demand for 
 specific performance, if the Plaintiff alleges a contract in his bill, the 
 Defendant, unless he puts himself upon the statute in his answer, admits 
 the existence of the contract : Roberts on Frauds, p. 106; Whitrhurcli v. 
 Bevis^. But even in equity it is required that the writing the Plaintiff 
 seeks to enforce should import the privity and assent of both parties : 
 Charlwood v. Buke of Bedford^. And in Champion v. Plummer", Sir 
 James Mansfield said, " How can that Ije said to be a contract, or 
 memorandum of a contract, which does not state who are the contracting 
 parties 1 By this note it does not at all appear to whom the goods were 
 sold. It would prove a sale to any other person as well as to the plain- 
 tiffs ; there cannot be a contract without two parties, and it is customary 
 in the course of business to state the name of the purchaser, as well as of 
 the seller, in every bill of parcels. This does not aj^pear to me to 
 amount to any memorandum in writing of a bargain." Gosbell v. Archer* 
 shews that the courts are not disposed to construe the statute away. 
 Even, independently of the statute, no agreement can be enforced without 
 an actionable mutuality between the parties. In Lees v. WMtcomb' it was 
 held that a written agreement "to remain with A. B. two years for the 
 purpose of learning a trade," was not binding for want of an engagement 
 in the same instrument hy A. B. to teach. 
 
 TiNDAL, C J. This case comes before the Court on two objections. 
 
 First, that when the contract is inspected it does not contain the name 
 of one of the parties. I admit that an agreement is not perfect unless in 
 the body of it, or by necessary inference it contain the names of the two 
 contracting parties, the subject-matter of the contract, the consideration, 
 and the promise. Looking at this contract, as it may be collected from 
 the particular of sale, it appears to be an agreement by wliich Ross sells 
 property on behalf of Lai/thoarp. When, in the outset, it says that the 
 property will be sold, subject to conditions, we are referred to tho 
 conditions in the same paper ; and there we see that Ross is an auctioneer 
 who sells for Laythoarp. That gets rid of the objection therefore, that 
 Laythoarp^s name is not contained in the contract. 
 
 The second objection is of great importance : that the contract has 
 not been signed by the vendor. In order to determine the validity of tho 
 olijection we must look to section 4 of the Statute of Frauds. That 
 
 1 2 Br. Ch. Cas. 561. = 1 Atk. 197. M N. R. 'ir.i. 
 
 * 1 Nev. & Man. 485. * 5 Bingh. 34. 
 
 14—2
 
 212 
 
 LAYTHOARP V. BRYANT. [CHAP. II 
 
 section directs that " no action shall be brought, whereby to charge any 
 executor or administrator, upon any special promise, to answer damages 
 out of his own estate; or to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriage of another person ; 
 or to charge any person upon any agreement made upon consideration of 
 marriage ; or upon any contract or sale of lands, tenements, or heredita- 
 ments, or any interest in or concerning them; or upon any agreement 
 that is not to be performed within the space of one year from the 
 making thereof, unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof shall be in writing, and 
 signed by the party to be charged therewith, or some other person there- 
 unto by him lawfully authorized." And the object of the statute was, 
 that no action should lie unless where it could be proved at the trial that 
 the agreement had been signed by the party to be charged. First, 
 no action against any executor or administrator ; that is, where an 
 executor is defendant ; then, " or to charge the defendant upon any 
 special promise, ifcc," — tliere, the term is, expressly, defendant, — " unless 
 the agreement upon which such action shall be brought, or some 
 memorandum or note thereof, shall be in writing, and signed by the 
 party — " By what party ? By " the party to be charged therewith," — 
 the defendant in the action. 
 
 But then it is said, unless the plaintiff signs there is a want of 
 mutuality. Whose fault is thati The defendant might have required 
 tlie vendor's signature to the contract ; but the object of the statute was 
 to secure the defendant's. The preamble runs, " For prevention of many 
 fraudulent practices, which are commonly endeavoured to be upheld by 
 perjury and subornation of perjury." Aiid the whole object of the 
 legislature is answered when we put this construction on the statute. Here, 
 when this party who has signed is the party to be charged, he cannot be 
 subject to any fraud. And there has been a little confusion in the 
 argument between the consideration of an agreement and mutuality of 
 claims. It is true the consideration must appear on the face of the 
 agreement. Wain v. Warlters was decided on the express ground that an 
 agreement under the fourth section imports more than a bargain under 
 the seventeenth. But I find no case, nor any reason for saying that the 
 signature of both parties is that which makes the agreement. The 
 agreement, in truth, is made before any signature. 
 
 Let us apply this to several of the cases pointed out in the fourth 
 section. I agree that the same principle must be applied to all ; but let 
 us see whether in any it has been dreamed of that there must be a 
 signature by both parties. In the first place, take the case of a letter 
 from an executor. Who ever heard that in order to charge him there 
 nmst also be a letter from the party addressed 1 If the executor's letter 
 contain merely an offer, that ofier indeed must be accepted before it can be 
 I;inding ; but if it contain a promise on adequate consideration, no
 
 SECT. Il] LAYTHOARP V. BRYANT. 213 
 
 further signature is wanting to its validity. Let us look at the next 
 case, — an engagement to pay the debt of a third person. Is it not every 
 day's pi-actice to put in a guaranty signed by the surety 1 but I never 
 heard it objected that unless you sliew also the signature of the otlier party 
 the guaranty is void. No such objection was made in Wai7i v. Warlters, 
 although it would have afforded an easy answer to the Plaintiff's claim. 
 
 Tlie word agreement, therefore, is satisfied, if the writing states the 
 subject-matter of the contract ; the consideration ; and is signed by the 
 paTty_to be charged. 
 
 Among the several authorities cited, I will only refer to two, which 
 seem to decide this cause. In Enimerson v. Heelis there was a sale by 
 auction of some growing turnips. Upon a Indding by the defendant's 
 servant, on the pai't of tlie defendant, the lot was knocked down to him ; 
 the auctioneer wrote the defendant's name opposite the description of the 
 lot in the particulars of sale ; and the contract was held valid notwith- 
 standing there was no signature on the part of the vendor. Allen v. 
 Bennett was a decision on the seventeenth section, but it was held that 
 there was no occasion for a signature by the vendor, although the word in 
 that section is parties ; in section 4, party. Lees v. Whitcomb does not 
 bear out the point for which it has been cited. For, first, it turned on the 
 want of consideration ; and, secondly, on a variance between the record 
 and the evidence. As to the decisions in courts of equity, I can only say 
 that in the greater number of them there has not been a signature by both 
 parties, and notwitlistanding the dicta of Lord Redesdale and Sir 
 T. Plummer, — no doubt great authorities, — courts of equity have 
 continued the same stream of decision as before. 
 
 Park, J. I put out of view the decisions in courts of equity, although 
 the greater proportion of them is in favour of the construction we now 
 adopt, and those courts have not followed the dicta of Lord Redesdale and 
 Sir Tliomas Plummer. And the cases on the seventeenth section of the 
 statute might very much be put out of question, because the language of 
 that section is different from the language of the fourth. But even in 
 those cases, where the language of the section is parties, not part;/, it was 
 not held necessary that the contract should be signed by both. In 
 Saunderson v. Jackson^ the name of the buyer was not at first inserted in 
 the contract ; but a letter was found referring to it, and it was held the 
 two papers might ])e connected together. And Boioen v. Morris' confirms 
 that decision. Then, with respect to the construction of the fourth 
 section, it is best not to make fanciful distinctions, but to look at the 
 words of the statute : "No action shall be brought, unless the agreement 
 upon which such action shall be brought, or some memorandum or note 
 thereof, sliall be in writing, and signed by tlie party to be charged there- 
 with, or some other person tliereunto by him lawfully authorized." 
 
 1 2 B. & P. 238. ' 2 Taunt. 374.
 
 21-t 
 
 LAYTHOARP V. BRYANT. [CHAP. II 
 
 This is signed by tin' party to be charged ; the consideration is duly 
 stated, and tlie name of the auctioneer and of tlie vendor apppars in the 
 conditions. In Lees v. W/dtcomb the only question was, whether the 
 contract was truly set out in the declaration. 
 
 Vaughan, J. All tlie essential requisites of sect. 4, both according to 
 the letter and spirit of the act, have been complied with. The argument 
 has proceeded on a fallacy arising out of a mis-conception of the case of 
 Wain V. Warlters. That decision never turned on the ground that the 
 nmtuality of a contract must appear, but only that the note or a 
 memorandum must shew the consideration as well as the promise, 
 otherwise all the inconveniences would prevail which the statute was meant 
 to obviate. 
 
 The present objection lias not been taken before, and is not sanctioned 
 by any of the great authorities. In Seton v. Slade^ a signature by one 
 party was held sufficient; and Foivle v. Freeman' is a decision to the 
 same eflect. In Bowen v. Morris^ Sir J. Mansfield said, "In equity, a 
 contract signed by one party would be enforced, and it was not clear that 
 it was different in law." 
 
 The courts of equity, with the exception of the dicfn of Lord Eedesdale 
 ;ind Sir T. Flummer, present one uniform stream of authority. There is 
 nothing contrary at law ; and looking at the words of the statute, they 
 are, " No action shall be brought, unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or some other 
 person thereunto by him lawfully authorized." Is not tliis an agreement 
 wliich fulfils the requisites of the statute, inasmuch as it states the 
 consideration for the contract, and the promise, and is signed by the party 
 to be charged] 
 
 BosANQUET, J. My opinion is founded on the words of the fourth 
 section of the statute, as well taken by themselves as contrasting them 
 with sect. 17. It is said there has been some difference of opinion on the 
 subject in courts of equity ; although the preponderance of authority is in 
 favour of the construction we now adopt ; I find no doubt in courts of 
 law ; but if there be any, we must revert to the language of the statute : 
 " No action shall be brought, unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or some other 
 person thereunto by him lawfully authorized." This fourth section does 
 not avoid contracts not signed in the manner prescribed ; it only 
 precludes any right of action. The seventeenth section is stronger, and 
 avoids contracts not made as the section prescribes*: yet even under that 
 section it has been held sufficient if a contract be signed by the paity to 
 
 ' 7 Ves. 275. = Ves. .3.51. ■< 2 Taunt. 387. 
 
 * Bee contra per Lord Blackburn m Marldison v. Aldenon, 8 App. Cas. 488.
 
 SECT. Il] REUSS V. PICKSLEY. 215 
 
 be cliarged. In the fourth section, the language is, expressly, the party to 
 be charged. It is said there must be an agreement, and, to be binding, it 
 must be signed. No doubt that is so ; and tlie question is, is this an 
 agreement ? It states tlie particulars of the property to be sold ; it 
 incorporates the name of the purchaser, the Seller, the property and the 
 price ; it includes all the requisites of an agreement, and the Defendant 
 testifies by his signature that such an agreement exists. The question is, 
 can the vendor enforce it, if it be not signed by himself^ 
 
 The statute requires that it shall be signed by the party to be charged ; 
 and it was not intended to impose on the vendor the burthen of the 
 proof of some other paper in the hands of the opposite party, and which 
 the vendor may have no means of producing ; for it often happens that 
 each party delivers to the other the part signed by himself. A common 
 case is, where an agreement arises out of a correspondence ; it often 
 happens that a party is unable to give evidence of his own letter ; and he 
 is not to be defeated because he cannot produce a formal agreement signed 
 by both the parties to the contract. 
 
 My opinion being formed on the language of the statute, it is 
 unnecessary to observe on the letters written on the part of the Plaintiff; 
 but if there had been any doubt as to the extent of what the statute 
 requires, I should have thought those letters would have supplied tlie 
 deficiency'. 
 
 Bute discharged. 
 
 REUSS AND ANOTHER v. PICKSLEY AND ANOTHER. 
 In the Exchequer Chamber, June 19, 1866. 
 
 [Reported in Law Reports, 1 Ex., 342.] 
 
 Appe.vl by the defendants against a judgment of tlie Court of 
 Exchequer discharging a rule to enter a nonsuit or for a new trial on the 
 ground of misdirection and that the damages were excessive ^ 
 
 The cause was tried at the Manchester winter assizes before Pigott, B., 
 when the followng facts were proved : — At the time of the alleged 
 agreement the plaintifis carried on business at Manchester, and the 
 defendants carried on business as agricultural implement makers, at Leigh 
 near Manchester, under the style of Picksley, Sims, and Co. In the 
 autumn of 1864 an industrial exliibition was fixed to be held at Moscow, 
 and the defendants were desirous of exhibiting some of their machines 
 there. Accordingly they entered into negotiations with the plaintifis, 
 with the view of the plaintifis undertaking to look after the goods sent by 
 
 ' See Knight v. Croekford, 1 Esp. 190. - The pleadings are omitted. Ed.
 
 216 REUSS V. PICKSLET. [CHAP. II 
 
 the defendants wliilst .at the exhibition. Tlie plaintiffs at first declined 
 tlie responsibility, but upon tlie defendants proposing to make an agency 
 for ten years with them if they would bear a part of the expense of the 
 exhibition, one of the plaintiffs, Mr. Ernst Reuss, stated that he would go 
 to Moscow and liimself superintend tlie arrangements necessary for 
 exhibiting the defendants' goods. With that intention he went to Moscow 
 in July, 1864, and remained there for a month. Meantime a quantity of 
 goods were sent by the defendants to tlie plaintiffs for the purpose of 
 being forwarded to the exhibition. On Mr Reuss's return he requested an 
 interview with Mr. Sims, one of the defendants, with reference to the 
 Russian agency. An interview t'lereupon was had at which the terms of 
 the agency were discussed, and afterwards the plaintiffs wrote to the 
 defendants the following letter : 
 
 "Manchester, 8th September, 1864. 
 Messrs. Picksley, Sims, & Co., Leigh. 
 
 Referring to our conversation witli Mr. Sims, respecting the machinery 
 for the Moscow exhibition, it was arranged that we take cliarge of all the 
 macliines &c., in Hull, and pay for your account all freight charges, insu- 
 rances ifec, till delivered in Moscow. That we sell in Moscow as many of the 
 machines as possible, and that after the close of the exhibition the unsold 
 remainder be at your risk and expense, either to keep in Moscow or 
 return home as you think fit at your expense. That we pay you here 
 cash for all machines sold during the exhibition, the price to be calculated 
 at list price less the fuU trade discount for cash, that you pay the 
 travelling expenses there and back of Mr. Smith, but that we pay his 
 additional salary whilst in Moscow of 10s. per day, and his hotel bill. 
 That the agency for Russia be for ten years from date on following 
 conditions. You to allow us full discount for cash on all orders received 
 by us direct, and that you hand over to us to be dealt with in the same 
 way all orders you receive from Russia (excepting those from Odessa). 
 On all orders executed by you from Russia, excepting Odessa, that may 
 come through any other agent in Great Britain, you allow us a commission 
 of 51. per cent. That we act as and are hereby appointed your sole agents 
 for the kingdom of Italy on the same conditions as for Russia. Awaiting 
 your reply we are &c., 
 
 Ernst Reuss & Co." 
 
 To that letter the defendants replied as follows : 
 
 " Bedford Foundry, Leigh, Lancashire, 
 
 September 9th, 1864. 
 Our Mr. Sims desires me to acknowledge the receipt of your favour 
 dated tlie 8th inst., and to say as far as the agency for Russia goes he 
 considers it satisfactory, except that you must confine yourselves to us for 
 every description of machinery we manufacture, and which you sell 
 111 Russia. With respect to Italy, Mr Sims, cannot at present say
 
 SECT. Il] REUSS V. PICKSLEY. 217 
 
 anything about it, in consequence of tlie change whicli is lilccly to 
 take place in our tirm shortly. — I am, &c. 
 
 p.p. Picksley, Sims, &, Co., Joseph Smitli. 
 
 Messrs. Ernst Reuss & Co." 
 
 The plaintifls sent no reply to this letter, but after the date of it goods 
 "were sent to them by the defendants, and were forwarded by tlie plaintifls 
 to Moscow, where they were shewn at the exhibition, which took place on 
 the 7th September, 1864. At the close of the exhibition a great pro- 
 portion of the goods remained unsold, and in respect of tliese, as well 
 as in respect of those sold, the plaintifls incurred considerable expenses. 
 
 On the 8th December, 1864, the defendants transferred their business 
 to a Joint Stock Company, and in the February following, the plaintiffs' 
 Moscow agent died. Shortly afterwards the plaintiffs and defendants 
 entered into a correspondence with a view to a settlement of the matters 
 connected with the Moscow exlubition, but tlie parties were unable to 
 come to any agreement. The plaintiffs thereupon brought this action. 
 No orders for macliinery from England had been received by either 
 pkxintiffs or defendants for Russia (except Odessa), at the time of the 
 alleged breacli. 
 
 Upon the trial the learned judge directed tlie jury that the Moscow 
 and Russian stipulations in the letters of the 8tli and 9tli September were 
 parts of one and the same contract, and the jury found that the plaintiffs 
 did accept and accede to the terms of that contract. A verdict was 
 accordingly entered under the direction of the learned judge for the 
 plaintiffs, damages 8501. Leave was reserved to the defendants to move 
 to set aside the verdict and enter a nonsuit on the ground that there was 
 no sufficient memorandum in writing of the contract under the Statute of 
 Frauds (29 Car. 2, c. 3), s. 4, which enacts, amongst other things, that no 
 action shall be brought upon any agreement that is not to be performed 
 within the space of one year from the making thereof, unless the 
 agreement upon which such action shall be brought, or some note or 
 memorandum thereof, shall be in writing and signed by the party 
 to be charged therewith, or his agent. A rule nisi was obtained in 
 Hilary Term last pursuant to leave reserved, and also for a new trial, on 
 the ground of misdirection by the judge in ruling that the Moscow and 
 Russian stipulations were one contract, and of the damages being 
 excessive. The Court (Feb. 8) discharged this rule (the plaintiffs con- 
 senting to reduce the damages to 6.50?.), holding themselves bound by the 
 authority of Smith v. NeaW. Pollock, O.B., however, stated that had the 
 question been res Integra he should have been disposed to come to a 
 contrary conclusion. Against this decision the defendants appealed, and 
 the question for the opinion of the Court was, whether the defendants 
 were entitled to have the verdict found for the plaintiffs set aside, and a 
 nonsuit entered. 
 
 1 2 C. B. (N.s.) f,7; 20 L. J. (C. P.) 143.
 
 218 REUSS V. PICKSLET. [CHAP. II 
 
 Brett, Q.C. {Ilaijman witli him), for the defendants. There is no 
 evidence of an assent by the plaintiH's sufficient to bind the defendants to 
 the terms of the contract or contracts contained in the letters of tlie Sth 
 and 9th September. In Warner v. Willington\ Kindersley, "V.C., says 
 tliat for "an act to constitute a sufficient acceptance of a written proposal, 
 it must be an unambiguous act ; and an acceptance of a written proposal 
 must be an unconditional acceptance." Now, the present case may be 
 ren-arded in two ways ; either the letter of the 9th may be regarded as an 
 assent, with certain modifications, to the terms contained in the letter of 
 the Sth, so as to constitute an entire contract, or else the two letters may 
 be taken to constitute a proposal to which the plaintiffs assented by 
 conduct without -wTiting. As to the first alternative, the letter of the 9th 
 was not an assent but a counter-proposal. The letter of the 8th in reality 
 contained the terms of three separate contracts, as to this Russian 
 agency, as to the Moscow exhibition, and as to the Italian agency. Then 
 the reply is silent as to the Moscow exhibition, modifies the terms 
 suggested as to the Russian agency, and declines the Italian agency 
 altogether. The acceptance, thereof, as far as this reply goes, was neither 
 unequivocal nor unconditional. As to the second alternative, if the contracts 
 ought to be considered as three and not one, the plaintiflTs' conduct does 
 not amount to an assent as far as the Russian agency is concerned. But 
 granting that the two letters do contain a memorandum of a proposal signed 
 by the party sought to be charged, that cannot be accepted by parol. 
 Warner v. Willington', is an authority to the contrary, but with that 
 exception there has been no case on the subject. Kindersley, V.C. 
 (p. 532), says, "I cannot find any case in which it is deteinnined that 
 parol acceptance of a written proposal is sufficient." 
 
 [Blackburn, J., referred to Colegrave v. Upcot', cited in Sugden, 
 Vendors and Purchasers, 10th ed. vol. i. p. 164, as decisive of the 
 point.] 
 
 The Vice-Chancellor could not have considered that case in point for it 
 was cited in the argument before him. Smith v. ]Veale\ on which the 
 Court below acted, merely follows Warner v. Willington'. It is moreover 
 not an express decision on this question though "VVilles, J., expresses 
 an opinion in conformity with that of Kindersley, V.C. The Liverpool 
 Borough Bank v. Eccles^, also followed the same case. 
 
 [WiLLES, J., referred to Modey v. Tinkler'^, where Parke, B., 
 indicates that a proposal in writing need not be accepted by writing.] 
 
 The principle of the sufficiency of a parol acceptance ought to be 
 confined to a case where the writing assented to is in itself a memorandum 
 of an agreement and not a mere ofier. If it is the latter a subsequent 
 acceptance without writing cannot be enough : it cannot turn a proposal 
 into an agreement or memorandum sufficient to satisfy the Statute 
 
 1 3 Drew, at p. 533. = 3 Drew, .523. ^ 5 Vin. Abr. 527. ■• 2 C. B. (n.s.) G7; 
 26 L. J. (C. P.) 143. 5 4 H. & N. 139. « 1 C. M. & E. 692.
 
 SECT. Il] REUSS V. PICK8LEY. 219 
 
 of Frauds. Kindersley, V.C. in the case already referred to recognises 
 but does not act upon the distinction between a memorandum of 
 agreement and of offer. "The one," he says', "supposes that the two 
 parties have verbally made an actual contract with each other, and when 
 the terms of such contract are reduced to writing and signed that is 
 sufficient to bind the party signing, but if the memorandum is of an offer 
 only, that assumes there has been no actual contract between the parties." 
 This distinction is also recognised in the decisions on the Stamp Acts. A 
 proposal accepted by parol requires no stamp, i.e., it is not considered 
 a memorandum of agreement. 
 
 Manisttj, Q.C. (Ilolker and Baylis with liim), for the plaintiff's. That 
 the contract contained in tlie letters was one and not threefold is 
 sufficiently shewn from the negotiations which preceded it. As to the 
 letters themselves they constitute an entire proposal, and the defendants 
 must be taken to have approved of and adopted tlie terms from which 
 they do not dissent. Then assuming the contract to be one, the 
 autlioiities and dicta, from Colegrave v. Upcot' downwards, are all in 
 favour of the proposition, that a written proposal signed by one party may 
 be assented to without writing by the other. 
 
 Brett, Q.C, in reply. 
 
 The judgment of tlie Court (Willes, Byles, Blackburn, Mellor, Shee, and 
 Montague Smith, JJ.) was delivered by 
 
 WiLliES, J., who after referring to the pleadings, proceeded as 
 follows : — We are all of opinion that the judgment of tlie Court of 
 Exchequer should be affirmed. It appears that tlie plaintiffs, through 
 a member of their firm, had some negotiations with the defendants, 
 through a member of their firm, with reference to so much of the contract 
 declared upon as related to the Moscow exhibition. In the course of 
 these negotiations, the plaintiff's refused to encounter the expenses of this 
 exhibition unless the defendants would undertake in some way or other to 
 reimburse them, and accordingly communications as to the manner 
 in which this object could be eff'ected were entered into between the 
 parties. It was suggested by the plaintiff's that they should be employed 
 for a term of ten years as agents in Russia for the sale of machinery. 
 But when first broached, that negotiation did not come to a head. One of 
 the plaintiff's went abroad, and on his return sent word that he wished to 
 see one of the defendants, Mr. Sims, on business, tliat business being with 
 reference to the agency in Russia. An interview was thereupon had, at 
 which the terms of the agency were discussed, and letters afterwards 
 passed relating to the Moscow exliibition, the agency in Russia, and an 
 agency which the plaintiff's desired in Italy. On the 8th September, 
 18G4:, one letter was written by the plaintiff's, and on the 9th an answer 
 was sent by tlie defendants. The letter of the plaintiff's was to this effi'ect. 
 
 1 3 Drew, at p. 531. ^ 5 Vin. Abr. 527.
 
 220 REUSS V. PICKSLEY. [CHAP. II 
 
 [Tlie learned judge read so much of tlie letter as refers to the Moscow 
 exliihitiou.] Then the letter proceeds to speak of the Russian agency in 
 terms not applicable to a distinct or separate contract. Having dealt 
 with the matters connected with the Moscow exhibition, which was to 
 operate as accessory to the general agency, and as an advertisement, the 
 letter "oes on to detail the terms of the agency for Russia ; and as to this 
 part of the arrangement the plaintiffs do not state that they are to abstain 
 from taking orders from other persons. To this, and to this alone, the 
 defendants objected in the letter of the 9th. Then follows, in the letter of 
 the Sth, the paragraph respecting the Italian agency. 
 
 In answer to this letter comes t!»e letter of the 9th September. [The 
 learned judge read the letter.] So far, therefore, as the Russian agency 
 goes, the letter of the 8tli was otherwise satisfactory to the defendants. 
 Now, the letter of the Sth dealt witli the Russian agency and also with 
 the arrangement respecting the Moscow exhibition. There was no 
 reference to the one as distinct from the other, and the conclusion is, that 
 as to the Moscow exhibition no observation was required, and as to 
 the Russian agency the sole objection was that the plaintiffs, instead of 
 having the agency given to them without limitation, were to be prevented 
 from being agents for any one else. As to the Italian agency, that is put 
 out of the question. The meaning, therefore, of the whole is this : — " True 
 we made a certain arrangement yesterday as to Russia, but we 
 meant it to be with a limitation, and as to Italy we made no arrange- 
 ment at all." 
 
 Now, this was either a memorandum of agreement, or at least a 
 proposal with the terms of the letter of the Sth as a basis ; a proposal, 
 that is, that the plaintiffs should act as agents at Moscow, and become 
 agents for Russia, pledging themselves to take no other agency. There- 
 fore, I say these letters constitute either an agreement or at least a 
 proposal. Assume it in favour of the defendants to be the latter. 
 
 We must now consider what followed. The Moscow exhibition 
 took place, and the goods intended for exhibition were forwarded and 
 dealt with by the plaintiffs as they undertook to deal with them. 
 Expenses were incurred by the plaintiffs which they certainly would 
 not have incurred without a promise of the Russian agency ; and these 
 expenses were incurred with reference to the Moscow exhibition. Was 
 this evidence of assent on the part of the plaintiffs to the terms of the 
 letter of the 9th September 1 The defendants maintain that it was not, 
 and their argument depends on a dissection of the terms of the letter of 
 the Sth. But we see no reason for dissevering those terms. The whole 
 appears to have been one arrangement. When taking the two lettei'S 
 together we find the second silent as to the Moscow exhibition, and when 
 we find moreover that the exhibition was accessory to and connected 
 by way of advertisement with the rest of the Russian agency, we 
 conclude that the whole transaction between the parties was one and
 
 SECT. Il] EEUSS V. PICKSLEY. ' 221 
 
 indivisible. Therefore tliere was a performance of their part by the 
 phiintiffs, wliich was evidence of an assent to the terms of the letters of 
 the 8th and 9th September, or treating the letter of the 9th as a modified 
 proposal, there was evidence that the plaintiffs assented to it. 
 
 Now m point of law what was the effect of this assents Putting 
 for the moment the Statute of Frauds out of the question, no inquiry 
 would be made as to the precise time at which the different parts of one 
 single transaction took place. The question would be, was it or was it not 
 one transaction, and was an assent contained in it ; and in this case we 
 are of opinion that the ti-ansaction was one, and did contain an assent. 
 But the Statute of Frauds introduces a new element, because it makes 
 it necessary by section 4 that an agreement not to be performed by either 
 party within a year must be in writing, signed by the party to be charged 
 therewith. Now all that was signed here was not a formal agreement but 
 a proposal on one side, and there was an assent to that proposal on 
 the other. All difficulty as to the terms of the proposal is out of the case. 
 It contained the names of the parties and all the terms by reference to the 
 letter of the 8th September, which must be taken to be recited in the 
 letter of the 9th. The only question is, whether it is sufficient to satisfy 
 the statute that the party charged should sign what he proposes as 
 an agreement, and that the other party should afterwards assent without 
 writing to the proposal t As to this it is clear, both on reasoning 
 and authority, that the proposal so signed and assented to, does become a 
 memorandum or note of an agreement within the 4th section of the 
 statute. 
 
 Many cases might be put in illustration of this proposition, but one or 
 two will be sufficient. Take for example a case arising under the Joint 
 Stock Companies Act (19 & 20 Vict. c. 47), whereby it is provided that 
 no person shall be deemed to have accepted any share in the company 
 unless he testifies his acceptance by writing under his hand [Schedule 
 Table B]. It was at first supposed that something must be done by the 
 shareholder in writing after allotment, and that otherwise he would not be 
 a shareholder because he proposed in writing to become one and to accept 
 his shares upon allotment. But the Court of Common Pleas, when the 
 case was brought before them, said that it was a mistake to suppose that 
 under these circumstances there was no acceptance in writing. The true 
 mode, they say, of regarding such a transaction was that it was from 
 beginning to end one transaction, and accordingly they held that the 
 acceptance was complete, and the statute satisfied by a proposal in writino- 
 to accept the shares, followed by an allotment. The Court there acted on 
 a judgment delivered in the Court of Queen's Bench by my Brother 
 Blackburn to the effect that the " acceptance " of goods to satisfy the 
 Statute of Frauds, s. 17, may be prior to the actual delivery of them'. It 
 
 1 The cases referred to are Cusack v. Robiiison, 1 B. & S. 299; 30 L. J. (Q. B.), 261 ; 
 
 and The Boy Li'ad iliiiing Company v. Monlaijtu', 10 C. B. (n. s.) 481 ; 30 L. J. (C. P.) 3s0.
 
 222 UEUSS V. PICKSLEY. [CHAP. TI 
 
 is indeed quite a fallacy to suppose that because certain acts happen 
 at (liHerent periods they cannot be so connected as to form one transaction. 
 That was the ground of the Lord Keeper's decision in Cohman v. UjKot ' ; 
 where he held that an offer to sell an estate, made in writing and after- 
 wards accepted by parol, bound as a contract. The principle of that case 
 was recognised and assented to by Kindersley, V.O. in Warner v. Wil- 
 Uwjton'; he did not, however, treat it as precisely in point, probably 
 on account of the note in Viner, stating that, in fact, there was an 
 acceptance in writing. The judguient, however, was founded on the 
 consideration that the parol acceptance was sufficient, and it is cited to 
 support that position by Lord St Leonards (Sugden, Vendors and 
 Purchasers, 10th ed. vol. i. p. 164). The case of Warner v. WiUinglon- 
 was followed by the Court of Common Pleas in Smith v. JVeale^ and by the 
 Court of Exchequer in Liverpool Borough Bank v. Eccles*. 
 
 So far as to agreements which must be mutual, but where the statute 
 only requires the signature of the party to be charged. But we may 
 usefully consider two classes of contracts. One class includes cases where 
 a proposal is made which may or may not be acted on. The most 
 ordinary example is a guarantee, which by section 4 of the statute must 
 be in writing. The creditor may supply goods to the person whose credit 
 is guaranteed or not as he pleases ; but if he does supply them the surety 
 is bound, except in cases like Mozley v. Tinkler^ were on the true 
 construction of the guarantee, which was in the form of a letter to 
 the plaintiffs, it was held that notice of the plaintifi's' acceptance of it 
 should have been given. But in that case it does not seem to have 
 occurred to any of the Court that the acceptance need be in writing. 
 Indeed the judgment of Lord Wensleydale (Parke, B.) rather points to 
 the opposite conclusion. That case therefore is confirmatory of our deci- 
 sion that the whole evidence of an agreement need not be in writing, 
 but only all the terms along with the signature of the party to be charged. 
 
 It has been urged upon us that this conclusion will lead to fraud and 
 perjury, and to the very mischiefs the statute was passed to prevent. 
 We do not concur in that view, because no one will be able to enforce an 
 agreement of the sort we are now discussing, without proving that he 
 did or was ready to do his part to entitle him to performance on the part 
 of the other contracting party. Moreover, if good for anything, that 
 argument is good to shew that a regular agreement or memorandum of it, 
 signed by one party only, ought not to bind him. The reason we have 
 given is a good answer to the argument, but that argument was also 
 considered by the Court of Common Pleas in Laythoarp v. Bryant'', where 
 the Court held, in spite of a weighty dictum of Sir W. Grant in Martin v. 
 Mltcheir, that only the party to be charged need sign, the other party, 
 
 ' 5 Vin. Abr. 527. = 3 Drew, 52.3. ' 2 C. B. (n.s.) 67; 26 L. J. (C. P.) 143. 
 « 4 H. & N. 13!). 6 1 c. M. & K, 692. « 2 Bing. N. C. 735. 
 
 ' 2 Jac. & Walk, at p. 428.
 
 SECT, ll] WILLIAMS V. JORDAN. 223 
 
 however, at the same time being ready to fulfil his own part of the 
 agreement before suing. 
 
 Again, take another case, \'\z., tlie case of a contract where both 
 parties must sign, of which the most familiar example is an ordinary lease 
 for years not under seal which, by the conjoint operation of sections 1 and 
 4 of the statute, must be in writing, signed by the parties making the 
 same. I am referring for the moment to leases before the 7 & 8 Vict. c. 
 76, and the 8 & 9 Vict. c. 106, which enacted that leases required to be in 
 writing by the Statute of Frauds shall thenceforth be under seal. 
 Where such a lease was signed by the lessee only, he took no interest, and 
 was not bound according to the principle laid in Soprani v. Skurro\ 
 Now, suppose the lessee were to sign before the lessor. Every argument 
 which has been urged to shew that a subsequent act cannot turn what is 
 not an agreement into an agreement would apply ; but could any one 
 seriously contend that it would make any difl'erence whether the lessor or 
 lessee signed a lease first? The law is clear upon the point. We ai'e not 
 to look at the precise moment at which an assent is given, but at tlie 
 entire transaction, and if the assent when given does make a contract, 
 that is enough ; for the px-oposal, though prior in time, is in fact a 
 memorandum or note of the terms of that contract, signed by the party to 
 be charged witliin the meaning of the statute. 
 
 The judgment of the Court below must therefore be affirmed. We all 
 approve of the reasoning of Kindersley, V.C., in Warner v. Willington', 
 wlio, after all, only restated an old proposition of law. 
 
 Judgment affirmed. 
 
 WILLIAMS V. JORDAN. 
 In the High Court of Justice, July 12, 1877. 
 
 [Reported in Law Seiiorts, 6 Chancery Division, 517.] 
 
 On the 29th of February, 1876, the Defendants, Robert Jordan, 
 Reuben J. Jordan, and Albert J. Davis, signed the following letter in 
 the presence of a Mr. Sydenham Watson, who alleged himself to be the 
 agent of the Plaintiff, to sell or let the Bijou llientre in Archer Street, 
 Baysivater, of wliich the Plaintiff was tlie alleged owner : — • 
 
 " Sir, — I hereby agree to rent the Bijou Theatre, Bayswater, together 
 with all appurtenances belonging, on a 7, 14, or 21 years lease, to 
 be computed from Lady Day next, and to contain the usual covenants, 
 at an annual rent of seven hundred and fifty pounds (£750), and to sign 
 an ordinary lease. It is understood that I may be allowed to take 
 ' Yelv. 18. « 3 Drew, 523.
 
 224 WILLIAMS V. JORDAN. [CHAP. II 
 
 formal possession of the said premises as soon as this offer is accepted, 
 notwithstanding the lease may not be signed. 
 
 "Robert Jordnn, 
 " Witness : " Reuben J. Jordan, 
 
 "Sydenham. J. C. Watson, " Albert J. Davis. 
 
 " ffnrlesdon." 
 This letter was given to Watson for delivery to the Plaintiff. 
 On the 5th of March, 1876, the Defendants received the following 
 letter from Mr. Sydenham Watson: — 
 
 "^Messrs. R. Jordan, R. J. Jordan, and Albert J. Davis. 
 " Dear Sirs, " 54, Russell Square, W.O. 
 
 " Re Victoria Hall Bijou Theatre, &c. 
 "I am happy to inform you that your offer of the 29th ult., to 
 rent these premises upon lease of 7, 14, or 21 years, at £750 per annum, 
 is accepted by the owner of the property, whose solicitor vnll shortly 
 communicate with you regarding the lease. I may mention that I have 
 seen the surveyor and architect, who certifies that the premises are 
 perfectly safe, being most substantially built, and admirably adapted in 
 every way for the purpose required. 
 
 "I remain, Dear Sirs, 
 " Yours truly, 
 
 " Sydenham Watson." 
 The Defendants did not append their signatures to this letter nor to 
 any other document referring to it. 
 
 The Defendants subsequently refused to perform the contract, alleging 
 that they had withdrawn their offer before the letter of the 5th of March, 
 1876, was written or sent to them, upon which the Plaintiff brought his 
 action for specific performance. 
 
 The Defendants, by their defence, denied that the letters constituted 
 a contract or agreement within the provisions of the Statute of 
 Frauds. 
 
 Roxburgh, Q.C., and Brett, for the Plaintiff. 
 C'hitty, Q.C., and Sidney Wool/, for the Defendants : — 
 According to Mr. Dart', it appears to be now clearly settled that, 
 in order to satisfy the statute, both parties should be specified either 
 nommally or by a sufficient desci'iption. Here the letters do not shew 
 who the intended lessor is, and there is no other document which is 
 sufficiently connected with the offer to cure the defect : Warner v. 
 Wi/Ungton'; Boyce v. Green'; Potter v. DuffiekV. 
 
 [They referred also to Rossiter v. Miller'' and Catling v. King'^.'\ 
 Roxburgh, in reply : — 
 
 There is an offer to take a lease, signed by the parties to be charged, 
 ' V. & P. 5th Ed. p. 217. 2 3 Drew, 523. ^ Batty, 608. 
 
 * Law Eep. 18 Ecj. 4. s 5 q\^_ d (548. 6 Ibid. 660. 
 
 I
 
 SECT. Il] WILLIAMS V. JORDAN. 225 
 
 and .in acceptance of that offer by the agent of the Plaintiff" by the 
 description or reference of tlie owners. In Potter \^ DvffipJcV your 
 Lordsliip observed : " Tlie statute will be satisfied if the parties arc 
 suiMciently described, so that their identity cannot be fairly disputed'" 
 which is the case here''. 
 Jessel, M. R. : — 
 I must most reluctantly allow the objection, but I think that I am 
 bound to do so. First of all, the letter containing the offer was not 
 addressed to anybody. It begins "Sir," but who "Sir" was does not 
 appear from the letter. It is signed by the Defendants, and that is all. 
 There was a letter of acceptance sent to and received by the Defendants, 
 but that letter is not signed by the Defendants, nor is it referred to in 
 any subsequent letter or document bearing their signature. Now, as I 
 understand the Statute of Frauds, or rather the decisions on that statute, 
 there must be a memorandum or note in writing of some agreement. 
 But the letter of the 29th of February is not an agreement ; it is an offer 
 by the Defendants to somebody, I cannot tell who. The letter of 
 acceptance does not shew who that somebody is, for there is nothing in 
 it to incorporate it with the original offer, and no document referring 
 to it of subsequent date with the Defendants' signature. In the case 
 of ^Vanmr v. Willinffton", just as in this case, the lessor's name was 
 not signed, and Vice-Chancellor Kindersley held that because the name 
 of the lessor did not appear the memorandum was not sufficient to 
 maintain an action or bill for specific performance. He said : " But 
 though this is the general rule, there is this exception, that if it can be 
 ascertained who is the vendor or intended lessor from some other 
 
 1 Law Rep. 18 Eq. 4, 7. 
 
 - In the case of Rossiter v. Miller, 3 App. Cas. 1124, 1140, in which one of the 
 questions raised was whether the expression " the proprietors " was a sufficient 
 description of one of the parties, Lord Cau'ns said, "I own I was somewhat surprised 
 to hear that question argued, for I am sure your Lordships have frequently seen 
 conditions of sale not merely by auction but by private contract, in which it is stated 
 that the sale is made, sometimes by the owners, and sometimes by the mortgagees, and 
 a form of contract is annexed in which an agent signs for the vendors, and no other 
 specification upon the vendor's part is inserted, and I never heard up to this time that 
 a contract under those circumstances was invalid. In point of fact, my Lords, the 
 question is, is there that certainty which is described in the legal maxim id eertiim est 
 quod certum reddi potext. If I enter into a contract on behalf of my client, on behalf of 
 my principal, on behalf of my friend, on behalf of those whom it may conoern, in all 
 those cases there is no such statement, and I apprehend that in none of those cases 
 ■would the note satisfy the requirements of the Statute of Frauds. But if I, being 
 really an agent, enter into a contract to sell Blackacre, of which I am not proprietor, 
 or to sell the house No. 1, Portland Place, on behalf of the owner of that house, there, 
 I apprehend, is a statement of matter of fact, as to which there can be perfect certainty, 
 and none of the dangers struck at by the Statute of Frauds can arise ; and I should be 
 surprised if any authority could be found, and certainly none has been produced, to say 
 that a contract uuder those circumstances would not be valid." Ed. 
 
 '■' 3 Drew, .523, 530. 
 
 F. 15
 
 226 SHARDLOW V. COTTERELL. [CHAP. II 
 
 document which is suftkiently connecterl with the memorandum by clear 
 reference" (of course he meant some other document previously existing) 
 "that will cure the defect of the memorandum." There is, I have already 
 said, no such document. I am of opinion that I am bound by Warner 
 V. Willhigton to give effect to this objection, and there must be judgment 
 for the Defendants, with costs. 
 
 SHARDLOW V. COTTERELL. 
 In the Court op Appeal, December 3, 188L 
 
 [Reported in Law Reports, 20 Chancery Division, 90.] 
 
 This was an appeal by the Plaintiff from a decision of Mr. Justice 
 Ka>/. 
 
 Eighy, Q.C., and J. G. Alexander, for the Appellant : — 
 
 If in a contract there is a reference to propei'ty in such a way tliat the 
 subject-matter can be rendered certain by extrinsic evidence, that is 
 sufficient. The whole frame of the conditions shews that some real estate 
 was the subject of sale, and the question is merely of parcel or no parcel ; 
 it is impossible ever to describe property in such a way as wholly to 
 dispense with parol e\'idence. In Macdonald v. Longhottom" "your wool" 
 was held a sufficient description; in Ogilvie v. Foljambe^ "Mr. Ogilvie's 
 house," and in Wood v. Scarth* "the premises." Tliere is no uncei'tainty, 
 the only question is. What property was put up for sale at a certain 
 timef A description wliich would be sufficient in a will must be 
 sufficient in a contract, and a devise of " the property which I bought 
 from Mr. CoUerell at the Su7i Inn on the 29th of March, 1880," would 
 certainly be a good devise. 
 
 Whiteliorne, Q.C., and Foohs, contrh: — 
 
 This is a patent ambiguity, and parol evidence is not admissible to 
 explain it: Dart's Vendors and Purchasers". The word "property" is of 
 the vaguest description, and defines nothing. We do not dispute that, as 
 in Long v. Millar", parol evidence is always admissible to shew to what 
 property a description applies, but it caimot be called in to make a 
 description where there is none. As regards the case of a devise, the 
 Courts have always shewn more liberality to wills than to contracts : 
 Williams v. Lahe^. 
 
 [Lush, L. J., referred to Eidgioay v. Wharton".'] 
 
 ' 18 Ch. D. 2R0. The facts are stated in the judgment of the Master of the Rolls. 
 ' 1 E. & E. 977. 3 3 Mer. 53. « 2 K. & J. 33. 
 
 = 4th Ed. p. 882. « 4 C.- P. D. 1.50. ' 2 E. & E. 319. 
 
 « 6 H. L. C. 238, 257.
 
 SECT. II ] SHARPLOW V. COTTERELL. 227 
 
 That establishes only tliat, if a tlocument is referred to, parol evidence 
 is admissible to shew what document is referred to, and Caoe v. Ilasthigs' 
 so explains it. To make this case come within Lomj v. Ililkir there is 
 required some description in the particulars of sale. 
 
 [Jessel, M. R. : — The memorandum is not inform a complete contract ; 
 no price is named. Does not Lo7ig v. Millar authorize us to join the 
 several documents 1 Suppose a memorandum in this form : " I agree to 
 buy for X450 tlie property which was put up for sale at tlie Sim Inn on 
 the 29th day of March, 1880, by Mr. Colterell, and whicli was not then 
 sold." Would not that be enough 1] 
 
 In that case tliere would be a description. Blagden v. Bradhear' 
 decides the point which arises here : it was held that the receipt could not 
 be connected with the conditions of sale. The principles applicable to the 
 case are illustrated by Sale v. Lambert^ ; Potter v. Duffield* ; Rossiter v. 
 Miller^; Siiffden's Vendors and Purchasers". 
 
 [Baggallay, L. J., referred to lileaklfi/ v. Smith''.] 
 
 Suppose the conditions and memorandum turned into a formal docu- 
 ment, we sliould have nothing but " property " as a description, and how 
 can that be held to satisfy the statute ; it is a mere reference to a verbal 
 agreement to sell. In Monro v. Taylor" it was taken for granted that 
 there must be some description. In Price v. Griffith" the description was 
 "coals, ifec," which is not nearly so vague as "property," but yet was held 
 insufficient. In Caddick v. Skidmove"' a better description than we have 
 liere was held insufficient. As regards the analogy of a devise, this is like 
 a devise to A. B. of " all that property which I verbally promised yesterday 
 to leave to him ; " and that, we submit, would not be valid. 
 
 Je.ssel, M. R. : — 
 This case has been argued at some length, but I cannot bring my 
 mind to doubt as to the sufficiency of the description. The case is a short 
 one, and a very remarkable one, as illustrating our law. The Plaintiff 
 bought by auction a house at the Sun Inn, Pinxton, on the 29th of March, 
 1880, and paid his deposit, for which the auctioneer gave him a receipt in 
 these terms : — "Received of Mr. A. Shardlow the sum of £21 as deposit 
 on property purchased at X420 at Sun Inn, Pinxton, on the above date. 
 Mr. George Cotterell, Pinxton, owner." It has not been contested that if 
 the receipt had said " on a house purchased " tliere would have been a 
 sufficient description, but it has been argued that because the word 
 " property " is used the description is insufficient, and Mr. Justice Kay has 
 so decided. There were conditions of sale containing no description of 
 the property, but headed " Propei'ty sale at Sun Inn, Pinxton, March 
 29th, 1880." At the bottom was the following memorandum, signed by 
 
 ' 7 Q. B. D. 125. 2 12 Ves. 466. ^ Law Rep. 18 Eq. 1. 
 
 < Law Rep. 18 Eq. 4. 5 3 App. Gas. 1124. " 14th Ed. p. 136. 
 
 ' 11 Sim. 150. 8 8 jjare^ 51 a y j)_ m ,j^ q gg. >» 2 De G. & J. 52. 
 
 15—2
 
 2-1^ SHARDLOW V. COTTERELL. [CHAP. II 
 
 tlie auctioneer : " The property duly sold to Mr. Arthur Shardlow, butcher, 
 rinxton, and deposit paid at close of sale." It was held liy the learned 
 Judge in tiie Court below, and I think rightly held, that having regard to 
 the word " purchased " in the receipt, there was sufficient connection 
 between the two documents to allow them to be read together as saying 
 what was sold, but he came to the conclusion that even taking them 
 together there was not a sufficient description to satisfy the requirements 
 of the Statute of Frauds. Now, I am of opinion that the receipt alone 
 contained a sufficient description, and when we read the two documents 
 together, which I agree with the learned Judge in tlie Court below in 
 saying that we are at liberty to do, the case of the purchaser is greatly 
 strengthened. 
 
 Now, what is necessary to make a binding contract within the Statute 
 of Frauds '? In considering this it is well to go back to the statute, 
 because the decisions sometimes gradually drift away (so to speak) fi'om the 
 statute, and if we rely on them alone we are likely to be misled. The 
 Statute of Frauds, 29 Car. 2, c. 3, enacts by sect. 5 that all devises of 
 land shall be in writing, and signed by the party devising the same, or by 
 some other person in his presence and by his express directions. The 4th 
 section provides that no action shall be brought upon any contract or sale 
 of lands, or any interest in or concerning them, unless the agreement on 
 which such action shall be brought, or some memorandum or note thereof, 
 shall be in writing, and signed as therein mentioned. There appears to 
 me to be no distinction between these two sections as to the description 
 required, and a decision as to what is a sufficient description in the 
 one case must be an authority as to what shall be a sufficient description in 
 the other case. What, then, is a sufficient description in writing 1 No one 
 can say beforehand. You cannot have a description in writing which will 
 shut out all controversy as to parcels, even with the help of a map. I 
 have known a most bitter and long-continued litigation in a case where 
 both sides had most beautiful maps, the contest being between two 
 neighbouring proprietors as to the ownership of a ditch. No description 
 can be framed that will prevent aU dispute, and the framers of the Statute 
 of Frauds knew very well that they could not prevent perjury altogether, 
 but could only go some way towards it; and it was considered that 
 to require a note in writing was a useful check. It could be nothing 
 more : it could not entirely prevent perjury, for parties may suborn 
 witnesses to swear to the existence, destruction, and contents of a 
 memorandum which never in fact existed. Looking at the statute in that 
 light, what is a sufficient description? I consider that any two specific 
 terms are enough to point out sufficiently what is sold. For instance, 
 "the estate of A. B. in the county of C," or "the estate of A. B. which he 
 bought of G. D.," or "the estate of A. B. which was devised to him by 
 C. D." would be sufficiently specific. If so, why should not "the 
 property which A. B. bought of G. D. on the 29th of March, 1880," be
 
 SECT. Il] SHARDLOW V. COTTERELL. 229 
 
 sufficient? Would anybody doubt that in a will "the property which I 
 bought of C. D. on the 29th of March, 1880," would be a sufficient 
 description 1 If it is so in a will why not in a contract ? I am at loss to 
 understand the reasoning on which the learned Judge in the Court below 
 proceeded. 
 
 Let us look at the words in the present case. " Property purchased at 
 £420 at the Hun Inn, Pinxton, on the above date" (that is the 29th of 
 March, 1880), "Mr. George Cotterell, Pinxton, owner." There are here 
 not two, but three specific terms, that on a given day it was sold at a 
 given place, and that it belonged to Mr. George Cotterell. It appears to me 
 that this is an amply sufficient description. True there may be a dispute 
 about what the property was, but so there always may be. It is 
 admitted that the word " house " would have been sufficient, but that term 
 would no more have excluded a dispute than the word "property." I am 
 of opinion, therefore, that the receipt alone contains enough to determine 
 what the thing sold was. When we come to look at the conditions of sale 
 we find a good deal more. [His Lordship then made oliservations to the 
 effect that the conditions though not expressly shewing that the sulyect of 
 the sale was real estate contained indications that it was.] Then we 
 have at the foot the memorandum, " The property duly sold to Mr. A. 
 Shardlow, butcher, and deposit paid at close of sale." It therefore appears 
 to me there is sufficient description of the property, and with great 
 deference to the learned Judge in the Court below I think his reasons for 
 coming to the contrary conclusion not sufficient. He says that to his 
 mind the word " property " is quite as vague as the word " vendor." In 
 this I cannot agree with him. It is, he says, because of the vagueness of 
 the word that he does not allow parol evidence to be introduced to shew 
 what the thing sold was. The learned Judge seems to have forgotten that 
 the word " property " is the word used in the statutory form of con\-eyance 
 by a debtor for the benefit of his creditors. No one ever doubted that the 
 statutory form was valid, for " property " is sufficiently definite when you 
 mention all the property of the man, though parol e-\ddence is necessary to 
 shew what it was. There is no rule requiring an inseparable incident as 
 part of the description ; a separable incident is quite sufficient. Has any- 
 body ever doubted that "all that farm formerly in the tenancy of A., 
 which was devised' by B. to C," is a sufficient description, even though 
 the farm was not mentioned in the will, and passed as part of the residue. 
 Then those of us who are old enough to remember common recoveries, may 
 remember the form in the grant to make a tenant to the prcecipe, " All 
 the lands, tenements, hereditaments, estate whatsoever of which A. B. is 
 tenant for life," lic. Tliis requii-ed extrinsic evidence to shew what the 
 properties were, but no one ever doubted that it passed all the lands of 
 which A. B. was tenant for life. The learned Judge says', "Suppose for 
 example the vendor were to say, ' I sold at the Sun Inn a certain house, 
 
 1 18 Ch. D. 293.
 
 230 SHARDLOW V. COTTERELL. [CHAP. II 
 
 ccrtiiin plant, certain loose materials upon the giound, and I say what I 
 sold were all these things,' and he gives a list. Suppose the purchaser 
 says, ' I did not buy tliese things, I did not buy so many,' or ' I bought 
 those things and something else:' is not that the danger which the 
 Statute of Frauds was intended to prevent 1" Suppose these words put 
 into a will, " I leave all the property which I bought of George CottereU on 
 tiie 29th of March, 1880, to John Smith." Would the learned Judge say 
 that John Smith would not take the property then bought 1 There may 
 be a contest as to what belonged to Mr. George CottereU, and when the 
 learned Judge goes on to say, " You must have on the face of the contract 
 a sufficient definite description of the things sold to enable you to introduce 
 parol evidence to shew what tlie articles were to which that description 
 refers," I agree with hiin, but when he further says that "a mere 
 description of the thing sold as ' property ' is not to my mind sufficiently 
 definite to enable any such parol evidence to be adduced," I think that he 
 makes a remark not applicable to the present case, because he takes the 
 word " property " alone, whereas the description is in fact " property of 
 which Mr. George CottereU is owner, and which was sold on March the 
 29th, 1880," and that to my mind is a sufficiently definite description. In 
 this pai'ticular instance there was only one property which Mr. CottereU 
 put up on that day for auction, and which was the house in question, and 
 I think for the reasons I have given that the judgment of the Court 
 below must be reversed, and that this appeal must be allowed. 
 
 Baggallay, L. J. : — 
 I also agree in thinking that the receipt was a sufficient memorandum 
 to satisfy the requirements of the Statute of Fi'auds. If we look at that 
 document we find the name of the vendor, the name of the purchaser, the 
 price, and the signature of an agent who signed on behalf of the vendor, 
 but it is argued that it is too indefinite as regards the description of the 
 property, wliich is merely described as " property pui-chased at £420 at 
 Sun Inn, Pinxton, on the above date." In Bart's Vendors and Pur- 
 chasers', it is laid down that "a general description of the estate is 
 sufficient if parol evidence can be produced to shew what property was 
 intended," and he refers to Ogihie y. Foljnmhe'', in which the description 
 of " Mr. Ogilrin's liouse " was held to be sufficient, and Bleakley v. Smith^, 
 ■where it was held that the " property in Cable Street " was a sufficient 
 description. Lord St. Leonards* lays down the rule in the same way. 1 
 see no difficulty in applying that doctrine here, and in my opinion the 
 receipt alone contains a sufficient description. But, as has been pointed 
 out by the Master of the Eolls, the receipt and the conditions with the 
 memorandum at their foot may be read together, as the learned Judge in 
 the Court below held, and so reading them we have evidence that there was 
 a sale by auctioi under conditions of sale which indicate that what was sold 
 
 1 5th Ed. p. 219. 2 3 Mer. 53. ^ n gj^j 150. 4 Sug. V. & P. 14th Ed. p. 184.
 
 SECT. Il] SHARDLOW V. COTTERELL. 231 
 
 was real property, and I tliink that the two documents together are more 
 than sufficient to furnish a description. I do not assent to tlie proposition 
 that letters only can be read together. I take it that any documents, 
 whether letters or not, one of which refers to the other, can be read 
 togetlier, and the authority of Lunr/ v. Millar^ was hardly required in 
 support of that proposition. 
 
 Lush, L. J.: — 
 I regard this case as one of considerable importance. The question 
 presented to us is whether the two papers taken together, the receipt and 
 tlie conditions of sale with the memorandum at the foot of the conditions 
 of sale, contain the essentials of a perfect contract. Now in these two 
 documents we have first the name of the buyer and the name of the 
 seller, we have the price to be paid, and the time when the bargain is to 
 be completed, but it is objected that there is no sufficient description of 
 the thing sold. The argument is that the word " property " is a term 
 used for all kinds of chattel property as well as real estate, and that here 
 we cannot tell whether it be one or the other. But on the face of the 
 documents it is clear that it is property that can only pass by conversance, 
 because the expenses of the transfer are to be paid by the purchaser. 
 There is no transfer if you buy a horse or anytliing of that kind. There- 
 fore it is property which requires a conveyance. Then the day is fixed on 
 wliich possession is to be given up, and tliis points not to the sale of horses 
 or anything of that kind, but to the sale of real property. I therefore 
 come to the conclusion that a reasonable interpretation of the word 
 "property" in these documents is "real property." If tliis is so, we 
 liave the nature of the property, the name of the seller, the name of the 
 buyer, the price to be paid, and the time when the purchase is to be 
 completed, but it is urged that the property is not described with 
 sufficient certainty. I have been for a long time puzzling myself to know 
 wliat can be the meaning of this objection. Suppose a horse-dealer 
 having a great number of horses oflers one of them for sale ; the horse is 
 trotted out and approved of, but the parties differ about the price. 
 Suppose the next day the seller writes and says, "I will let you have that 
 horse for £50," and tlie buyer writes to accept the ofler, would not parol 
 evidence be admissible to shew what horse was meant t Or suppose a 
 landowner were to write to another, "I will sell you all my property in 
 Reyent Street for £10,000," and the other writes to accept tlie ofler, could 
 it be argued that this was a void contract because the number of the 
 houses was not specified % T)ie ordinary form of a conveyance by the 
 debtor for the benefit of his creditors has been already referred to as 
 shewing what a general description is sufficient. 
 
 The learned Judge in the Court below reasons on the case of OyUvie v. 
 FoJjuinhe". That was a contract by which "Mr Ogilvies house," with aU 
 
 ' 4 C. P. D. 4.50. s 3 Mer. 53.
 
 282 SHARDLOW V. COTTERELL. [CHAP. II 
 
 tlie fixtures, was to be bought for £14,000. The olijection was taken that 
 tliere was no certain description of the property. Tlie Master of the 
 Rolls said', "The defendant speaks of 'Mr. 0.(/ifoie's house,' and agrees 'to 
 give £14,000 for the premises,' and parol evidence has always been 
 admitted in such a case to shew to what house and to what premises the 
 treaty related." This has always been considered a leading authority. 
 The learned Judge attempts to distinguish that case by reference to the 
 previous correspondence which had taken place between the parties, but 
 the Master of the Rolls does not put his decision on that ground. In the 
 present case we have " property purchased at £420 at Sun Inn, rhixton, 
 on the 29th of March, 1880," real property, which was knocked down to 
 the Plaintia' as the highest bidder for £420. Yet the learned Judge, 
 after stating that in Oyilvie v. Foljamhe there was a description of specific 
 property, goes on to say, " I have not got anything like that here. I have 
 no description ; I do not know on the face of the contract, or by anything 
 I am entitled to look at, whether it was real or personal estate, or partly 
 one and partly the other, and I have nothing except the vague description 
 'property,' and that it belonged to Mr. CotterellVde owner." So that the 
 learned Judge overlooked the conditions of sale which, to my mind, shew 
 clearly that the property was real estate. Then in the concluding part of 
 the judgment he says that he is not prepared to carry the law on this 
 subject one hair's breadth beyond the decided cases, and that he thinks he 
 should be doing so if he held the description in the present case to be 
 sufficient. I cannot help thinking that this conclusion is opposed to legal 
 principle. The general rule is, " Id certum est quod certurn reddi jMtest," 
 and I am of opinion that this maxim applies here. In Ogilvie v. Fo/Jambe 
 parol evidence was wanted just as much as here to shew what was the 
 subject-matter of the contract, and the judgment below, if carried to its 
 legitimate results, would establish that no contract can be good within the 
 statute unless it describes the property in such a way that it is wholly 
 unnecessary to resort to parol evidence (1). 
 
 » 3 Mer. 61. 
 
 (1) In considering cases in which the contract, or the note or memorandum of 
 the terms of the contract, has to be found in a series of documents, it is imijortaut to 
 bear in mind the considerations insisted upon by Lord Selbonie in the case of 
 Ilmsi'tj V. Home-Payne, 4 App. Cas. .311, 322. He said: — "I cannot agree with what 
 appeared to be suggested 'ly part of the Appellant's argument, that, because two letters 
 were written, by which tlie conditions required by the Statute of Frauds would have 
 been satisfied, if there were nothing outside those letters to the contrary, therefore 
 there is here such a concluded agreement as a Court of Equity ought specifically to 
 perfonn, without regard to what preceded, or what followed. The observation has 
 often been made, that a contract established by letters may sometimes bind parties who, 
 when they wrote those letters, did not imagine that they were finally settling the terms 
 of the agreement by which they were to be bound ; and it appears to me that no such 
 contract ought to be held established, even by letters which would otherwise be 
 KUlliciunt for the purpose, if it is clear, upon the facts, that there were other conditions 
 of the intended contract, beyond and besides those expressed in the letters, which were
 
 SECT. Il] BIRKMYR V. DARNELL. 233 
 
 BIRKMYR V. DARNELL. 
 In the King's Bench, Michaelmas Term, 1704. 
 
 [Rejyorted in 1 Salkeld, 27.] 
 
 Declaration, That in consideration the plaintiff would deliver liis 
 gelding to A. the defendant promised tliat A. should re-deliver him safe ; 
 and evidence was, tliat the defendant undertook that A. should re-deliver 
 him safe ; and this was lield a collateral undertaking for another : For 
 where the undertaker comes in aid only to procure a credit to the party, 
 in that case tliere is a I'emedy against both, and botli are answerable 
 according to their distmct engagements ; but where the wliole credit is 
 given to the undertaker, so that the other party is but as his servant, and 
 there is no remedy against him, this is not a collateral undertaking ; but 
 it is otherwise in the principal case, for the plaintiff may maintain detinue 
 upon the bailment, against tlie original hirer, as well as an assumpsit upon 
 the promise against this defendant. This was upon a case stated at the 
 trial for the opinion of tlie Court ; judgment was given for the defendant. 
 
 Et pe)' Cur. If two come to a shop, and one buys, and the other, to 
 gain him credit, promises the seller, if he does not pay you, I will ; this is 
 a collateral undertaking, and void without writing, by the Statute of 
 Frauds : But if he says, Let liiin leave the goods, I will be your jxiyinaster, 
 or / itnll see you paid, this is an undertaking as for himself, and he shall 
 be intended to be the very buyer, and the other to act but as his servant. 
 
 MOUNTSTEPHEN v. LAKEMAN '. 
 
 In the Exchequek Chambee, November 17, 1871. 
 
 [Reported in Law Reports, 7 Queen's Bench, 196.] 
 
 Appeal by tlie plaintiff from the decision of the Court of Queen's 
 Bench, making absolute a rule to enter a nonsuit. 
 
 still in a state of neRotiation only, and without the settlement of -which the parties 
 had no idea of concluding any agreement. I adhere to what I said, when sitting in the 
 Court of Chancery, in the case of Jervis v. Berridgc", that the Statute of Frauds 
 'is a weapon of defence, not offence,' and 'does not make any signed instrument a 
 valid contract by reason of the signature, if it is not such according to the good faith 
 and real intention of the parties;' and I think it especially important to keep that 
 principle in view when, as in the present case, it is attempted to di'aw a line at one 
 point of a negotiation, conducted partly by correspondence and partly at meetings 
 between the parties, without regard to the sequel of the negotiations, which to my mind 
 plainly shews that terms of the intended agreement, which were of great practical 
 importance, and were so regarded on both sides, then remained unsettled and were 
 BtUl the subject of negotiation between them." En. 
 
 ' Aifirraed L. R. 7 H. L. 17, nom. Lakeman v. Mountstcphen. Ed. 
 
 - L. R. 8 Ch. at p. 3G0.
 
 234 MOUNTSTEPHEN V. LAKEMAN. [CHAP. II 
 
 The following is the substance of the pleadings and case : — 
 
 First count : That defendant was cliairraan of the local board of lioalth 
 of Brixliam, and in consideration that plaiutifl' would do certain work for 
 tlie board at request of defendant, as and assuming to be agent of the 
 board, defendant promised plaintiff that he was authorized by the board 
 to make such request; tliat plaintifl' did the work accordingly, but 
 defendant turned out not to be authorized, and plaintifl' was unable to 
 make the board pay. 
 
 Second count : Alleging defendant's promise to be that he would 
 procure a contract from tlie board, whereby tliey should be bound to pay 
 for the work. 
 
 Money counts : For work and labour, itc. 
 
 Count, added at tlie trial, alleging defendant's promise to be that, in 
 consideration that plaintifl" would do the work for the board, defendant 
 promised to pay for the work, if the board should at any time refuse 
 to pay. 
 
 Pleas to the money counts : Never indebted, and to the other counts, 
 1. That defendant did not promise as alleged, 2. That plaintifl" did not 
 do the work at defendant's request as alleged. 
 
 At the trial before Kelly, C. B., at the Devon Summer Assizes, 1870, 
 tlie following facts were proved : — Tlie defendant was chairman of the 
 Brixham Local Board of Health. Tlie plaintifl", a builder and contractor, 
 was employed, in 1866, by the board to construct certain main sewage 
 works in the town. On the 19th of March, 1866, notice was given by the 
 board under the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 69, to 
 the owners of certain houses to connect their house drains with the main 
 sewer within twenty-one days. Before the expiration of the twenty-one 
 days, Robert Adams, the surveyor of the board, proposed to the plaintiff 
 that he should construct the connections between the house drains and the 
 main sewer. The plaintifl' said that he was willing to do the work if the 
 board would see him paid. On the 5th of April, that is, before the 
 expiration of the twenty-one days, the construction of the connections was 
 commenced by the plaintifl". 
 
 The plaintiff stated in evidence that on the day on which the construc- 
 tion of the connections was commenced, and about an hour previous to the 
 commencement, he was leaving Brixliam with his carts and men, after the 
 completion of the main sewer, when Adams stopped him, and requested 
 liim not to go away as there was more work to be done. The plaintiff 
 asked who was to be responsible for the payment, and Adams said that 
 the defendant was waiting to see the plaintifl" about it. The plaintifl" then 
 liad an interview with the defendant, at which the following conversation 
 took place : The defendant said, " What objection have you to making the 
 connections 1 " Plaintifl" said, "I liave none; if you or the board will 
 order tlie work or become responsible for the payment." The defendant 
 replied, " Go on, Mountstephen, and do the work, and I will see you paid."
 
 SECT. Il] MOUNTSTEPHEN V. LAKEMAN. 235 
 
 The plaintiff constructed and completed the connections in question in 
 tlie months of April and May, 1866, under the general superintendence of 
 the surveyor of the hoard ; and the plaintift', on the 5th of December, 18(i6, 
 sent in an account to the board debiting them with the amount. The 
 board disclaimed responsibility on the ground that they had never entered 
 into any agreement with the plaintiff, nor by any resolution or order 
 authorized any officer of the board to agree with him for the performance 
 of the work in question. 
 
 The plaintiff, for the first time, on the 20th of November, 1869, 
 through his solicitor, applied to the defendant for payment of the work, 
 and the defendant having refused to pay him, commenced this action. 
 
 At the close of the plaintiff's case, the counsel for the defendant 
 claimed a nonsuit on the ground that there was no evidence of any 
 liability on the part of the defendant. The learned judge declined to 
 nonsuit, stating his opinion there was evidence to support a count in the 
 form above given, and which he gave the plaintiff leave to add. 
 
 The defendant's case was then entered upon, and the defendant denied 
 that any conversation of the kind deposed to by the plaintiff had ever 
 taken place. 
 
 The Chief Baron left it to the jury to say whether the conversation 
 did take place ; and the jury returned a verdict for the plaintiff for the 
 amount claimed. 
 
 Leave was reserved to the defendant to move to enter a nonsuit, if it 
 should appear that there was no evidence, either upon the original decla- 
 ration or upon the declaration as amended, which ought to have been left 
 to the jury. 
 
 The defendant obtained a rule accordingly, to enter a nonsuit, on the 
 ground that there was no evidence of any original liability on the part of 
 the defendant to the plaintiff for the work to be done ; or for a new trial, 
 on the ground that the verdict was against the evidence. 
 
 The Court of Queen's Bench afterwards made the rule absolute to 
 enter a nonsuit, on the ground that the defendant's engagement did not 
 amount to an undertaking to be primarily liable for the work ; but only 
 to a promise, that if the plaintiff would do the work on the credit of the 
 board, the defendant would pay if the lioard did not ; and that this was a 
 promise to be answerable for the debt of another within s. 4 of the 
 Statute of Frauds, and not being in writina; was void '. 
 
 The question for the Court of Appeal was, whether the defendant 
 is entitled to have a nonsuit entered. 
 
 Nov. 28. A. Charles (Lopes, Q.C., with him), for the plaintiff. The 
 decision of the Court of Queen's Bench, making the rule absolute to enter 
 a nonsuit, was erroneous. All that was left to the jury was, whether the 
 conversation spoken to by the plaintiff took place or not : this they found 
 
 ! Law Eup. 5 Q. B. 613.
 
 236 MOUNTSTEPHEN V. LAKEMAN. [CHAP. II 
 
 in the airirmative ; and therefore the question is, what was the contract 
 wliioh this conversation aviclenced, coupled with tlie other circumstances 
 of the case? There was ample evidence fi'om which the jury miglit have 
 found eitiier an original liability in the defendant, in which case the 
 plaintifl" would be entitled to a verdict on the added count, or the money 
 counts ; or else there was evidence to sustain a verdict on the first and 
 second counts. But the main argument in the court below proceeded on 
 the question under the Statute of Frauds. The Court were wrong in 
 liolding such a promise to be within s. 4 of the Statute of Frauds. In 
 order to make a contract a promise to be answerable for the debt, default, 
 or miscarriage of another, there must be a debt, default, or miscarriage of 
 a third person, for which that person has already or does thereafter 
 become liable, and it is not sufficient, as the Court of Queen's Bench held, 
 that the promiser and promisee both expect that by possibility a third 
 party will eventually become liable. [On this point he cited the following 
 authorities : Chitty on Contracts, 8th ed., p. 475 ; 2 Parsons on Contracts, 
 p. 301; Brown on the Statute of Frauds, ss. 11, 155, 156 (2nd ed.) ; 
 Birkmyr v. Darnell ' ; Read v. Nash '^ ; Kirkham v. Marter ' ; Harris v. 
 Ilanthach * ; Hargreaves v. Parsons * ; Couturier v. Hastie '^ ; Cripps v. 
 Hartnoll^ ; Green v. Cresswell" ; 1 Williams' Notes to Saunders, pp. 230 — 
 234; and Goodman v. Chase' ; but the judgment of the Court renders it 
 umiecessary to do more than refer to them.] Secondly, the promise of the 
 defendant, coupled with the surrounding circumstances, proved the tirst or 
 second counts within the principle of Collen v. Wright '", Siinoit^ v. 
 Falchett", and Cherry v. Colonial Bank cif Australasia"'. 
 
 Nov. 29. //. T. Cole, Q.C. (Pindar with him), for the defendant. The 
 contract to be deduced from the conversation, coupled with the position of 
 all parties at the time, is, that the owners or occupiers of the houses were 
 the parties to be primarily liable, and the promise of the defendant, 
 "I will see you paid," amounted to no more than a guarantee : Keate v. 
 Temple ". Why should the defendant make himself primarily liable ? 
 Tlie conversation could only import what the judges in the court below 
 said it did. [He cited notes to Birkmyr v. Darnell ' ; Throop on Verbal 
 Contracts, vol. i., cc. 7 and 8, pp. 214, 256 ; Peckham v. i^ari« '*.] 
 
 Charles, in reply. The supposed liability of the householders would 
 put the contract of the defendant precisely on the same footing as the 
 supposed liability of the local board, which was assumed by the Court of 
 Queen's Bench ; and the arguments already addressed to the latter state 
 of facts, are equally applicable if the supposed liability be that of the 
 householders ; in either case it is not within the Statute of Frauds. 
 
 1 1 Sm. L. C. 274 (6th ed.). " 1 Wils. 305. » 2 B. & A. C.13. 
 
 •■1 Burr. 373. ^ 13 m. & W. 561, 570. « 8 Ex. 40; 22 L. J. (Ex.) 97. 
 
 7 4B. & S. 414; 32L. J. (Q. B.) 381. 8 10 A. & E. 453. » 1 B. & AM. 297. 
 " 8 E. & B. 647; 27 L. J. (Q. B.) 213. " 7 E. <$; B. 568; 26 L. J. (Q. B.) 11)5. 
 >- Law Bep. 3 P. C. 24. " 1 B. & P. 158. " 3 Doug. 13.
 
 SECT. Il] MOUNTSTEPHEN r. LAKEMAX. 2;>7 
 
 [WiLLES, J. Suppose tliis to be put clown in writing, Ijut not signed 
 liy C. : " A. liaving ordered a house to be built by B., B. is desirous of 
 liaving the security of some third person, and C. is wdling to become 
 surety for A., and requests B. to go on with the house accordingly." 
 B. builds the house ; but it turns out, when the house is built, that the 
 order supposed by B. and C. to have been given by A. was not by A. but 
 by X., who had no authority from A., and, consequently, there was 
 no liability of A. The contract would be void, independently of the 
 Statute of Frauds, because C. never meant to become liable unless A. 
 was primarily liable ; both parties being mistaken, there is no contract 
 at all.] 
 
 In the present case there was no such common error ; both parties 
 knew that neither the owners nor the local board had given any orders 
 at the time the conversation between the plaintiff and defendant took 
 place. 
 
 WiLLES, J. [after going minutely through the facts of the case.] At 
 the time the conversation took place it was known, both to the plaintiff 
 and the defendant, that the owners were not liable, and had not interfered 
 in the matter. The plaintiff did not doubt the responsibility of the 
 board in respect of ability to pay, and he wanted no guarantee for this 
 work any more than for the work wliich he had already done for the 
 board ; but he knew he had not got the order of the board, and so did tlie 
 defendant, although the contrary seems to have been assumed by the 
 Court of Queen's Bench. Therefore, it is pretty clear that the meaning of 
 the conversation could not be that the defendant would guarantee pay- 
 ment by the board ; but it might mean that he had, or would obtain, the 
 order of the board, in which case the principle of Collen v. Wright ' would 
 apply, and the defendant might be liable on the first or second count. 
 But it was competent to a jury to find, — and I need go no further than 
 that, though I think it would have been the proper conclusion to draw, — 
 that the meaning of the answer of the defendant was not " I will be liable 
 as surety for the board, if they become liable to you," making the contract 
 one of suretyship ; liut " Whether the board be liable or not, do the work 
 and you shall be paid;" that i.s, "I undertake to pay you for the work, 
 unless you should happen to be paid either by the board or by the owners, 
 assuming they come forward and pay, though they are not liable." That 
 appears to me to be the result of the conversation. It is a bargain, 
 therefore, by the defendant to pay for the work, though it was known 
 that there was no person liable at the time, and whether a third person 
 should become liable in future or not, that is, whether or not there was, or 
 might be, a third person who could be liable for a debt, or guilty of a 
 default or miscarriage in the matter. And it is only in respect of such a 
 third person that the Statute of Frauds applies. 
 
 1 8 E. & B. 647; 27 L. J. (Q. B.) 21.5.
 
 238 MOUNTSTEPIIEN V. LAKEMAN. [CHAP. II 
 
 The leading case upon the application of the Statute of Frauds has 
 f^onpi'ally been eonsidcn-d to be Birhayr v. Darnell\ and in the note to 
 Mv. K\ans's edition of Salkeld's Reports it is stated, that, "from all the 
 authorities it appears, conformably to the doctrine in this case, that if the 
 person for whose use the goods are furnished is liable at all, any other 
 person's promise is void, except in writing." I think that may very well 
 be moditied : " Or if his liability is made the foundation of a contract 
 between the plaintiff' and the defendant, and that liability fails, the 
 promise is void : " so as to include the case which I put to Mr. Charles of 
 nersons wrongly supposing that a third person was liable, and entering 
 into a contract on that supposition. If, in such a case, it turned out that 
 tlie third person was not liable at all, the contract would fail, because 
 there would be a failure of that which the parties intentionally made the 
 foundation of the contract. The lex contractus itself would make an end 
 of the claim, and not the application of the Statute of Frauds, whether 
 the contract was in writing or not, and wliether signed or not. The law 
 of contract gives you, as foundation, that a person was taken to be liable, 
 and that the suretyship was a suretyship in respect of that liability. Take 
 away the foundation of principal contract, the contract of suretyship 
 would fail. Again, if there was a contract with reference to a liability, 
 not existing at the time, by reason of the debt not being due at the time, 
 but being payable in future, that would come under the word default, and 
 there would be no difficulty about that. So, if there was a contract, " If 
 A. B. will employ you to do work, I promise to become surety for him 
 that he shall pay you;" in that case the promise would clearly come 
 within the statute, because, although there was no liability existing at the 
 time when the promise was made, there was a liability contemplated 
 as the foundation for the promise of the defendant. It was a contract of 
 suretyship in respect of a liability to be created ; but if the liability were 
 not created, there again the lex contractus would prevail. There would 
 be the condition precedent to the arising of any liability as surety, that 
 there should be a principal debtor established. In all these cases, no 
 doubt, one agrees thoroughly with what was laid down in the Court of 
 Queen's Bench, because you have the case of principal debt contemplated 
 by the parties, and suretyship founded in respect of that principal debt. 
 But in order to bring the case within that rule, you must first of all shew 
 that the parties did intend that there should be a principal debtor. In 
 this case, seeing that the parties knew that the board was not liable, and 
 that the plaintiff would not go on unless he had the board or the defendant 
 liable, and did not care to have the defendant liable if the board was 
 liable, the facts seem to exclude, and the jury might well find that they 
 excluded, the notion of the defendant becoming surety for a liability, 
 either past, present, or future, upon the part of the board ; and they 
 might look upon the defendant's conti'act as a contract to pay, whether 
 
 1 1 Salk. 27.
 
 SECT. Il] MOUNTSTEPHEN V. LAKEMAN. 239 
 
 the board liave been, are, or shall be liable or not : " Do that work now, 
 and you shall be paid for that work." So that it is a case of principal liability. 
 
 We were asked by Mr. Cole to look at a variety of points in this case, 
 upon which he suggested that the true result ought to be a new trial, and 
 not the discharging of the rule directing that a nonsuit should be entered ; 
 but the arguments upon that head appear to be excluded by the reserva- 
 tion at the trial, which was to enter a nonsuit, if it should appear that 
 there was no evidence, either upon the original declaration or upon the 
 declaration as amended, which ought to have been left to the jury ; and 
 the rule was to eijter a nonsuit, on the ground that there was no e\adence 
 of an original liability on the part of the defendant. No objection was 
 taken to the form in which the question was left. Moreover, the question 
 for the opinion of the Court of Appeal is stated to be, whether or not the 
 defendant is entitled to have a nonsuit entered ; that is, whether, at the 
 end of the plaintiff's case, the Lord Chief Baron would have been justified 
 in directing that the plaintifl' should be nonsuited. 
 
 I do not think it necessary to make any further remarks upon the 
 judgment of the Court below. It is quite clear from the report, that the 
 judgment is founded upon the notion of such a case as I put to Mr. 
 Charles, namely, the notion that, upon the facts, the parties must be 
 taken to have supposed the e.xistence of a principal contract with the 
 board, or, taking Mr. Cole's \'iew, with the owners, before there could be 
 any contract arising with the defendant. It is a " supposed lialjility." 
 The facts are such that the jury might have thought, as I apprehend, 
 correctly, that it was a supposed non-liability of the board that led to 
 what took place between the plaintiff and the defendant. In the judgment 
 of Mr. Justice Blackburn, which I do not presume to criticise, except for 
 the purpose of finding out, as I am bound to do, the reasons on which he 
 proceeded, there is the passage : " We must now take it that the plaintiff, 
 when he agreed to do the work, thought he had got the order of the board, 
 but that he would not have done the work without, in addition to tlie 
 order of the board through their chairman, the personal promise of the 
 defendant himself that he would see him paid." I am not at all criticising 
 the law as laid down there, except in so far as it conflicts with Birhnyr v. 
 Darnell ' ; but dealing with that judgment upon the question of fact, upon 
 which it is founded, I humbly conceive that it assumes the fact differently 
 from what it appears upon the case as laid before us. It assumes tliat the 
 plaintiff thought he had the order of the board, whereas it appears upon 
 the case that the plaintiff would not go on. because he thought he had not 
 got the order of the board. The result appears to be, that the jury might 
 well, upon the evidence, have found an original liability in the defendant, 
 a liability not falling within the pro\4sion of the Statute of Frauds. A 
 nonsuit, therefore, could not have been sustained, and we are bound to 
 reverse the judgment ^. Judgment reversed. 
 
 ' 1 Salk. 27. ' The other judgments are omitted. Ed.
 
 240 THOMAS V. COOK. [CHAP. II 
 
 THOMAS V. COOK. 
 
 In the Kin-g's Bench, Michaelmas Term, 1828. 
 
 [Reported in 8 Barnaoall (0 CressweU, 728.] 
 
 Assumpsit. The declaration stated that on, &c. a certain partnership 
 in trade between one W. Cook, since deceased, and one iV. B. Morris, 
 ■was dissolved ; that it was agreed between W. Cook, since deceased, 
 and iforrh, that the former should take upon liimself the payment of 
 certain debts (specified in the declaration) ; and that it was also agreed 
 that a bond of indemnity, executed by W. Cook, since deceased, and 
 two other persons, should be given to Alorris, to save him harmless 
 from the payment of the said debts. And thereupon afterwards, to wit, 
 on, ifec, in consideration that the plaintift', at tlie request of the defendant, 
 ■would, together with tlie defendant and IF. Cook, since deceased, execute 
 a bond of indemnity to Morris in tlie sum of 4100^. conditioned to save 
 him harmless from the said debts ; the defendant undertook and promised 
 tlie plaintifl' that he, the defendant, would save harmless and indemnify 
 him from all payments, damages, costs, and expences which he (plaintifl') 
 should or might incur, bear, pay, sustain, or be put unto by reason or 
 means of his so executing the said writing obligatory. Averment, that 
 plaintifl' was afterwards compelled to pay on account of the said debts 
 tlie sum of 360/., and that defendant had not indemnified liim. The second 
 and third counts were in substance the same The fourth count alleged, 
 that in consideration that the plaintifl", at the request of the defendant, 
 would, as surety for IF. Cook, since deceased, together with the said 
 W. Cook and the defendant, make and draw a certain bill of exchange for 
 500Z. upon certain persons (named), and would indorse and deliver the 
 same to Morris, in order that he might negociate the same for his 
 own use, the defendant undertook to indemnify the plaintifl' from any 
 loss or damage by reason of his drawing and indorsing the bill. Aver- 
 ment, that plaintifl" did draw and indorse the bill in manner aforesaid, 
 and was afterwards by reason thereof compelled to pay it, whereof 
 the defendant had notice, but did not indemnify him. Counts for money 
 lent, paid, had, and received, and on an account stated. Plea, the 
 general issue and statute of limitations. Replication, that defendant 
 promised ■within six years. At the trial before Park J., at the Hereford 
 Lent assizes 1828, it appeared that the plaintifl" and defendant had 
 executed the bond, and drawn the bill mentioned in the declaration ; 
 that the defendant had requested the plaintifl' to do so, and promised 
 that he should not be a loser. It was also proved, that on account of 
 payments made by the plaintifl" towards the debts specified, and the bill of 
 exchange, a sum of 400/. remained due to him in 1825. A promissory 
 note for that sum given by IF. Cook, since deceased, to the plaintifl".
 
 SECT. Il] THOMAS V. COOK. 2!l 
 
 and bearing date in tlie year 1823, was tlien produced to the defendant, 
 and he signed it, and altered the word /, at the beginning, to We. After 
 this time tlie plaintiff received from the estate of IF. Cook, since deceased, 
 100/., leaving a deficiency of 300/. Several acknowledgments of a debt 
 by tlie defendant within six years were proved. For the defendant it was 
 contended, that tlie note was void on account of the alteration, and that 
 the plaintiff could not recover on the special counts for want of a written 
 agreement, the promise tliere laid being to answer for the debt of a third 
 person, and consequently that he could only recover against the defendant 
 as co-surety on the count for money paid, one moiety of the 300/. The 
 learned Judge directed the jury to find a verdict for the plaintifl' for 
 300/., and gave the defendant leave to move to reduce it to 150/. A rule 
 nisi for that purpose was obtained in last Easter term, against which 
 
 Taunton and Chilton now shewed cause. It is true that the pro- 
 missory note was rendered invalid by the alteration ; but although void as 
 a note, it might be received in evidence as a declaration by the party 
 signing it that the money was due. Rex v. Pendleton\ Dover v. Maestaer^. 
 [Bai/hij J. You endeavour to use the instrument as a contract, which is 
 contrary to the provisions of the stamp-act.] Even without the note, the 
 plaintiff is entitled to retain the verdict for 300/. There was evidence 
 of an antecedent promise by the defendant to refund all that the plaintiff 
 should be compelled to pay. Such a promise is not within the fourth 
 section of the statute of frauds, and need not be in writing. To be 
 within that clause, the promise must be made to a creditor. Here the 
 plaintiff, at the time when the promise was made, was not a creditor. If 
 one bail procures another person to join him by giving a promise of 
 indemnity, that need not be in writing. In some cases, where there was 
 an original consideration, it was held that a promise, although made to 
 pay a creditor of a third person, need not be in writing, WiUiains v. 
 Leaper^, recognized by Lord Eldon in Houlditch v. Milne*, and by Lord 
 EllenborougJi in Castling v. Auhert^. 
 
 Russell Serjt. and Curtvood contra. The declaration itself describes 
 the debts paid by the plaintifl" as the debts of W. Cook, deceased, 
 and Morris — and the promise alleged to have been made by the defendant 
 is to indemnify the plaintiff if he is called upon to pay those debts ; or, 
 in other words, to pay those debts if the original debtors did not. That 
 is expressly within the words of the fourth section of the Statute of Frauds, 
 which requires all special promises to answer for the debt, default, or 
 miscari-iage of another person to be in writing. It is said that tlie 
 plaintiff was not a creditor at the time when the promise was made ; but 
 the cases of Jones v. Cooper", and Matson v. Wharani' shew th.-it the 
 debt need not exist at the time to be within the statute. \^Bai/ley J. 
 This in reality was not a promise to pay the delit of a third person, but to 
 
 1 15 East, 449. = 5 Esp. 92. » g Wils. 308. 3 Burr. 1880. 
 
 * 3 Esp. 86. 5 2 East, 32.3. ' Cowp.T, 227. " 2 T. R. SO. 
 
 F. llj
 
 242 FENTON V. EMBLERS. [CHAP. II 
 
 indemnify.] Tliat is true, but it was to indemnify against tiie debt of a 
 third person. 
 
 Bayley, J. It is pro\'ided by the fourth section of the Statute of 
 Frauds, tliat " No action shall be brought to charge the defendant upon 
 any special promise to answer for the debt, default, or miscarriage of 
 another person, unless the agreement upon which such action .shall be 
 brought, or some memorandum or note thereof, shall be in writing, and 
 signed by the party to be charged therewith, or by some other person 
 thereunto by him lawfully authorized." Here the bond was given to 
 Morris as the creditor ; but the promise in question was not made to 
 him. A promise to him would liave been to answer for the default of 
 the debtor. But it being necessary for W. Cooh, since deceased, to 
 find sureties, the defendant applied to the plaintifT to join him in tlie 
 bond and bill of exchange, and undertook to save him harmless. A 
 promise to indemnify does not, as it appears to me, fall within either 
 the words or the policy of the Statute of Frauds ; and if so, there was 
 sufficient evidence to entitle the plaintiff to a verdict for 300^. 
 
 Parke, J.' This was not a promise to answer for the debt, default, 
 or miscarriage of another person, but an original contract between these 
 parties, that the plaintiff should be indemnified against the bond. If 
 the plaintiff, at the request of the defendant, had paid money to a third 
 person, a pi-omise to repay it need not have been in writing, and this 
 case is in substance the same. The rule for reducing the verdict ought, 
 therefore, to be discharged.* 
 
 Rule discharged. 
 * See JVildes v. Dudloio, L. E. 19 Eq. 108. 
 
 FENTON V. EMBLERS, EXECUTOR OF MAY. 
 In the King's Bench, Hilary Tek.m, 17G2. 
 
 [Reported in 3 Burroios, 1278.] 
 
 This was a special case, reserved at nisi prius at the assizes at 
 Abingdon. 
 
 It was an action upon the case upon assumpsit, against Emblers, as 
 representative of one May deceased. 
 
 The declaration contained six counts ; and upon the first four counts, 
 there was a verdict for the plaintiff; and for the defendant, on tlie sixth. 
 The only doubt was upon the fifth count : which fifth count was, " That 
 the said William May, in consideration that the said Sarah (the plaintiff) 
 
 ' Littleddlc .1. was at the Old Bailey.
 
 SECT. II J FENTON V. EMBLERS. 24."} 
 
 would 1)0 and become the house-keeper and servant of the said William, 
 and take upon herself the care and management of liis family, &c. ; and 
 perform the same as long as it shall please the said William and Sara!) ; 
 undertook and pi'omised to pay wages to the said Sarah at and after the 
 rate of six pounds for one year ; and also by his last will and testament to 
 give and bequeath to the said Sarah a legacy or annuity of 16^. by the 
 year, to be paid and payable to her yearly and every year from the day of 
 tlie decease of the said William for and during the term of her natur.-il 
 life ; and that she the said Sarah, contiding in the said promise, entei'cd 
 into his service, and became his house-keeper, <fec., and continued so for 
 three years and fifty-nine days : but that he the said William had not 
 performed his said agreement, and did not leave her such legacy or 
 annuity, ifcc." 
 
 It was stated in the case, that it appeared upon the evidence, that 
 there was such an agreement between the said William May and the 
 plaintiff; but that it was by parol, and not in writing. 
 
 That the plaintiff, in performance of her part of the said agreement, 
 did enter into the testator's service, as housekeeper, ifec. ; and continued in 
 such service till the testator's decease. 
 
 That the testator did not give her by last will, or otherwise, the said 
 annuity of IG^. per annum, or any other annuity. 
 
 A verdict was found foi' the plaintiff on the fifth count, for 220/. 
 subject to the opinion of tlie court ; first, whether the ev-idence was 
 suflieient to maintain the action upon it : secondly, whether the agreement 
 therein set forth ousht not to have been in writing. 
 
 Mr. Hall, for the defendant, objected — First, that this evidence is not 
 sufficient to prove the special agreement laid in the fifth count ; which 
 ought to be proved precisely. He said there was a material variance 
 between tlie ease laid in the declaration, and tlie case proved. For, the 
 case laid in this fifth count in the declaration is not a hiring for a year ; 
 because either party was at liberty to put an end to the contract : but the 
 case proved is a general hiring ; which, in construction of law, is a hiring 
 for a year. 
 
 Secondly, that by the Statute of Frauds, (29 C. 2, c. 3, § 4,) this 
 agreement, as it was not to be performed within a year, ought to have 
 been reduced into writing. The statute says " No action shall be brought, 
 whereby to charge any executor or administrator, upon any agi-eement 
 that is not to l^e performed within the space of one year from the making 
 thereof ; unless the agreement upon which such action shall be brought, or 
 some memorandum or note thereof, shall be in writing, and signed by the 
 party to be charged therewith, or some other person thereujito by him 
 lawfully authorised." 
 
 This is a promise of a legacy, by an instrument revocable at pleasure. 
 It would be extremely inconvenient to establish promises of this kind, not 
 i-educed into writing. Tlie present agreement could not be performed, on 
 
 1(3—2
 
 244- FENTON V. EMBLERS. [c:HAP. 11 
 
 May's part, witliin a year : for a whole year from his death was to elapse, 
 before tlie annuity or any part of it would become payable. 
 
 He cited 1 Ld. Eayni. 31G, Smith v. Westall ; and relied on a case of 
 Reynolds v. Spencer Coivper, 'in Scacc,' in 1726. Viner Tit. contract and 
 agreement, p. 524, § 47, (which case he said he had ordered to be searched, 
 and found it to be so;) where the rule laid down is — "That a parol 
 promise to be performed upon a contingency which may or may not 
 happen witliin a year after the making, is void, within the Statute of 
 Frauds." 
 
 Mr. Stojve, contra, for the plaintiff, insisted first, that the evidence 
 does support the declaration ; and that the fact is precisely proved. 
 
 Secondly, that it was not necessary that this agreement should be 
 reduced into writing. The action is brought for May's not having done 
 what he ought to have done in his lifetime : so tliat it might and should 
 have been done within the year. This consideration is sufficient, at common 
 law, to raise a promise. The Statute of Frauds does not affect this case. 
 Mr. Hall's doctrine would overturn all the cases upon verbal general 
 contracts of matrimony, where the defendant did not actually promise "To 
 marry within the year." 
 
 He cited two cases in point : viz. I Salk. 280, anonymous. P. 5 W. & 
 M. C. B. and the case of the promise to pay 201. on marriage, mentioned 
 in 1 Ld. Eaym. 316, 317, Smith v. Westall. 
 
 Mr. Ball, in his reply, — Observed, that this is a method of binding the 
 assets, without making a will. 
 
 Lord Mansfield. There is only that case in the exchequer, in 1726, 
 that can make the least doubt. By the other cases, it seems settled. 
 
 There is nothing in the objection about his leaving it by his will : 
 for, there is nothing testamentary in a promise " To leave at his death." 
 
 The case in 1726, in the exchequer, can not be rightly represented to 
 us : for, as it is represented, one of the two resolutions, riz. that upon 
 the statute of limitations, is wrong to the last degree, and obviously so to 
 every body. It is represented to have been there resolved "That that 
 statute bars eventual rights, fi-om the time of the promise made, (after the 
 six years are elapsed : ") whereas no one can doubt but that the bar only 
 takes place from the time when the right accrued, and not from the time 
 of making the promise. 
 
 Mr. Justice Denison. The Statute of Frauds plainly means an agree- 
 ment not to be performed witliin the space of a year, and expressly and 
 specifically so agreed. A contingency is not within it ; nor any case that 
 depends upon contingency. It does not extend to cases where the thing 
 only may be performed within the year : and the act can not be extended 
 further than the words of it. Skinner, 353. Peter v. Compton, proves the 
 distinction of a contingency, as I have stated it, as fully and clearly as 
 possible. It was an action upon the case upon an agreement, in whicli
 
 SECT. 11] CHERRY V. HEMIXG & NEEDHAM. 245 
 
 the defendant promised, for one guinea, " To give tlie plaintiff so many at 
 the day of his marriage." The question was, "If such agreement ought to 
 be in writing : " for, the marriage did not liappen within a year. The 
 Chief Justice (Holt, before whom it was tried,) advised with all the 
 judges, and by the greater opinion (for there was diversity of opinion, and 
 his own was e contra) " Wliere the agreement is to be performed upon a 
 contingent, and it does not appear within the agreement, that it is to be 
 performed after the year, there a note in writing is not necessary ; for, 
 the contingent miglit happen within the year : but where it appears 
 by the whole tenor of the agreement, that it is to be performed after 
 the year, thei-e a note is necessary; otherwise, not." 
 
 Mr. Justice Wil.mot concurred ; and agreed with the reason of the 
 case in Salk. 280. " That by possibility, the ship might have returned 
 within the year ; though by accident it happened that it did not : and the 
 clause in the statute only extends to such promises, where, by tlie 
 express appointment of tlie party, the tiling is not to be performed within 
 a year." 
 
 Lord Mansfield. As to the variance, there is nothing in that 
 objection. 
 
 Let the postea be delivered to tlie plaintiff. 
 
 CHERRY V. HEMING AND NEEDHAM. 
 In the Exchequer, December 5, 1849. 
 
 [Reported in 4 Exchequer Reports, 631.] 
 
 This was an action of covenant on an indenture, dated the 31st of 
 March, 1836, wliereby the plaintiff assigned certain letters patent to 
 the defendants, who covenanted to pay the plaintiff 840?., by instalments 
 extending over several years, subject to a proviso, that if, at the expiration 
 of twelve months from the date of the indenture, tlie defendants sliould 
 not approve of the working of the patent, and should give notice of their 
 disapprobation, and of their intention to sell the patent, then the payment 
 of the first instalment should be suspended ; and if, having given such 
 notice, the defendants should within six montlis sell the patent, then the 
 covenant should cease and determine '. The defendants pleaded non est 
 factum. 
 
 At the trial, before Plait, B., at the Middlesex Sittings after Easter 
 Term, 1849, it appeared tliat the defendant Needham had executed the 
 1 See the declaration, 2 Excli. 557.
 
 246 CHERKY i: HEMING & NEEDHAM. [CHAP. II 
 
 deed, and tliere was tlie signature to it of all the parties, except that 
 of the defendant Heniing. Tliere was, however, a seal at the foot of the 
 deed for eacii party, being the seal ordinarily used in the office of the 
 plaintiff's attorney who prepared the deed, and who had attested the 
 execution of the defendant Needham. The deed was produced out of the 
 custody of Heming. The defendants had endeavoured to work the patent, 
 but, being dissatisfied with it, sent the following notice in the hand- 
 writing of the defendant Heming, and signed by both the defendants: — 
 
 " In pursuance and by \-irtue of the proviso in tliat behalf, contained 
 in an indenture bearing date the 31st of March, 1836, and made between 
 Elizabeth Cherry of the first part, George Weldon of the second part, 
 Jolni Ratliff of the third part, and the undersigned Dempster Heming and 
 Joseph Smith Needham of the fourth part, We, the said Dempster 
 Heming and Josepli Smith Needham, do hereby give you notice that we 
 do not approve of the working and exercising of the letters patent and 
 invention assigned by the said indenture to us; and we do further give 
 you notice, that it is our intention bona fide to sell or otherwise duly 
 dispose of the said letters patent and premises, within six calendar 
 months after the date of this notice, in any manner, to any person or 
 persons willing to purchase the same, for the best price in money that can 
 be reasonably obtained for the same ; and we do further give you notice, 
 that we shall pay, retain, and apply the money to arise from such sale in 
 manner directed in and by the said indenture." 
 
 It was objected, that there was no evidence of the execution of the 
 deed by the defendant Heming ; but the learned Judge ruled that there 
 was evidence for the jury. It was also objected, that this was a contract 
 within the 4th section of the Statute of Frauds, 29 Car. 2, c. 2, and ought, 
 therefore, to have been signed by the defendant Heming. His Loidship 
 was of opinion that a deed was not within the meaning of that statute, and 
 a verdict was found for the plaintifl'. 
 
 Knoides having obtained a rule nisi for a new trial, on the ground of 
 misdirection, 
 
 Watson and T. Jones shewed cause'. — Assuming that a contract by 
 deed is an agreement within the Statute of Frauds, 29 Car. 2, c. 3, s. 4, 
 this deed did not require to be signed, for it was wholly performed on the 
 one part by the plaintifl', and all that remained to be done on the other 
 was payment. The statute only applies where the agreement is not to be 
 performed by either party within the year. In this case the whole 
 consideration for the promise to pay the money was executed. It is the 
 same in principle as Hoby v. Roebiwk^, and Donellan v. Read^. [Parke, 
 ^- — There are some observations on the latter case in the note to Feter v. 
 
 ^ Upon the objection, that there was no evideuce of the execution of the deed by the 
 dcfumlant Heming, the Court stopped Watson, saying that there was clearly evideuce to 
 fc'o to the jury. Parke; B., referred to Iliidso,, v. ReveU, 5 Bing. 368. 
 
 '' 7 Taimt. l-,7. ^ ;i B. & Aid. SJ'J.
 
 SECT. Il] CHERRY V. HEMING & NEEDHAM. 247 
 
 Compton, 1 Smith's Lead. Cas. 1-14. However, Donellan v. Bead is not 
 at variance with Peter v. Compton, because Holt, C. J., disposed of that 
 case by saying it did not appear that the agreement was not to be 
 performed within the year.] It is in accordance with what was said 
 by Abbott, J., in Bracf girdle v. HenhV. But tlie statute does not apply to 
 deeds ; its object was the prevention of fraud in re.spect of parol agree- 
 ments, and not to affect such solemn instruments as deeds. That is 
 evident from the recital. The question arose in Cooch v. Goodman', but 
 wa.s not decided. \^Parke, B. — Mr. Preston, in a note to his edition 
 of Sheppard's Touchstone^, treats as a mistake the passage in Blackstone's 
 Commentaries'*, in which it is laid down that the Statute of Frauds 
 revives the Saxon custom of signing ; and in page 60, where it is said, 
 " It appeareth that the putting to or subscribing of the parties' name or 
 mark to the deed he is to seal is not essential ; for a deed," — Mr. Preston 
 adds, — even since the Statute of Frauds and Perjuries, "may be good, 
 albeit the party that doth seal it doth never set his name or his mark to 
 it, so as it be duly sealed and delivered."] To render an agreement good, 
 some consideration must be expressed on the face of it ; and if the word 
 " agreement " in the statute includes deed, a consideration must be stated 
 in them, although none is required to support them. The inference, 
 therefore, is, that the statute means such agreements only as require 
 a consideration to be expressed on the face of them. In a plea of an 
 agreement within the statute, it is necessary to aver that the agreement is 
 in writing ; but a deed is never pleaded as an agreement signed by 
 the parties. Even if the statute does apply, there is in this case a 
 sufficient memorandum in writing ; for the notice of the 31st March, 1837, 
 which was signed by the defendants, expressly refers to and adopts 
 the deed : Schneider v. Jf^orris^, isaunderson v. Jackson^. It is the same 
 as if a letter had been written by the defendants, in which they 
 acknowledged that on a certain day tliey had made such an agreement, 
 which would be clearly a note or memorandum within tlie statute : Coles 
 V. Trecothick^ . 
 
 Knowles and Bramicell, in support of the Rule. — Deeds are within the 
 mischief which it was the olyect of tlie statute to prevent. \_Parke, B. — 
 The object was to render the evidence certain. In Aveline v. Whisson", 
 which was an action of covenant on a lease, a plea that the indenture was 
 not signed by the lessor, or any agent authorised in writing, was held bad. 
 That shews that the first section of the statute does not apply to deeds.] 
 An agreement is not the less an agreement because it is under seal. \_Alder- 
 son, B. — Your argument must go this length : that a deed sealed and 
 attested, but not signed, is no agreement under the Statute of Frauds.] 
 In Smith's Mercantile Law ' it is said, that the cases in which it is heltl 
 
 1 1 B. & Aid. 722. = 2 Q. B. 580. ' Page 56. 
 
 ■• Vol. 2, p. 306. = 2 M. & Sel. 286. « 2 Bos. A P. 238. 
 
 7 9 Ves. 234. 8 4 M. ct G. 801. » Paye 440, 4tb edit.
 
 248 CHERKY I'. HEMIXG & NEEDHAM. [CHAP. II 
 
 that the statute does not apply to agreements, one part of wliich is to be 
 performed within a year, and the other not, is opposed to the older 
 authorities, and that the word " agreement " has been frequently construed 
 to mean all that is to be done on hofh sides. An agreement includes both 
 the consideration and promise. Expanding the language of the statute, it 
 means any arrangement between the parties where that which is the 
 consideration for the other party's acting is not to be performed within 
 the year. Performance is not complete until both parties have performed 
 their promises. 
 
 Parke, B. This rule must be discharged. With respect to the 
 question, whether this is an instrument within the Statute of Frauds, 
 I tliink that Donellau v. Read is an answer ; and, in my opinion, that 
 case was rightly decided. The question turns upon the construction of the 
 words " not to be performed ; " and in Donellan v. Read the Court 
 considered that those words meant, not to be performed on either side, and 
 did not include cases where the contract was performed on the one side. 
 That was certainly in accordance with the opinion expressed by Lord 
 Tenterden in Braceyirdle v. Ueald. If Donellan v. Read had been simply 
 a decision on a doubtful point, we ought to be bound by it, unless 
 manifestly wrong ; and the learned observations of Mr Smith are not 
 sufficient to induce me to say that it was wrongly decided. The case 
 of Peter v. Conipton, which he relies on, does not support his view. AU 
 that can be said of that case is, that, there being two answers to the 
 Statute of Frauds, Lord UoU gives one which is satisfactory, namely, that 
 the agreement might have been performed within the year. It is un- 
 necessary to give an opinion on the other points ; but I must own that I 
 think a deed is not within the Statute of Frauds, because, in my opinion, 
 tliat statute was never meant to apply to the most- solemn instrument 
 which the law recognises. I also think that the notice which refers to the 
 deed would, if it were necessary to have recourse to it, be a sufficient note 
 or memorandum within the statute. I do not mean to be concluded 
 by this expression of my opinion on the two latter points, but only to state 
 my present impression. 
 
 Alderson, B. I also think that Donellan v. Read is good law ; but 
 even if it were not, this case would not require its assistance, because, this 
 being the case of a deed, it must be taken to have been sealed by the 
 parties in due form, and the statute does not apply to such instruments, 
 but only to parol agreements. 
 
 RoLFE, B. I am strongly inclined to think that the statute does not 
 extend to deeds, because its requirements would be satisfied by the parties 
 putting their mark to the writing. The object of the statute was to 
 prevent matters of importance from resting on the frail testimony 
 of memory alone. Before the Norman time, signature rendered the 
 instrument authentic. Scaling was introduced because the "people in
 
 SECT, ll] BRITAIN V. ROSSITER. 2-i^ 
 
 general could not write. Then there arose a distinction between what was 
 sealed and what was not sealed, and tliat went on until society became 
 more advanced, when the statute ultimately said that certain instruments 
 must be authenticated by signature. That means, that such instruments 
 are not to rest on parol testimony only, and it was not intended to touch 
 those wliich were already authenticated by a ceremony of a liigher nature 
 than a signature or a mark. 
 Platt, B., concurred. 
 
 BRITAIN V. ROSSITER. 
 
 J- 
 
 In the Court of Appeal, ]March 4, 1879. 
 [Reported in Law Reports, 11 Queeii's Bench Division, 123.] 
 
 Action for wrongful dismlssal. 
 
 At the trial it appeared that the plaintiff entered into tlie defendant's 
 service as clerk and accountant for one year. 
 
 The plaintiff and the defendant had interviews upon the 17th, 19th, 
 and 21st of April, 1877. The 21st was a Saturday, and the plaintiff 
 entered upon the defendant's service upon Monday the 23rd. The linal 
 arrangement between the parties was arrived at upon the Saturday. 
 
 The plaintiff remained some months in the defendant's service and 
 was then dismissed without a three mouths' notice. The defendant 
 relied upon the Statute of Frauds, s. 4. At the trial before Hawkins, J., 
 the verdict was entered for the defendant upon the groujjd, first, that 
 the contract was made finally upon Saturday, the 21st of April, and 
 being made upon that day was within the Statute of Frauds, s. 4 ; 
 secondly, that there was no evidence of a new contract on Monday, 
 April the 23rd, it not being proved that the contract made on the 
 pre\'ious Saturday was altered or rescinded. 
 
 The Exchequer Division having refused a new trial on the ground of 
 misdirection, 
 
 1878. May 29. Firth moved in this Court, by way of appeal; he 
 contended first, that the contract of service for one year was to begin 
 from Monday, the 23rd of April, and therefore tliat it was a contract 
 to be performed within a year; secondly, that the plaintiff could not 
 be dismissed without notice, a verbal contract being in existence ; thirdly, 
 that the contract having been partly performed, was taken out of the 
 Statute of Frauds, s. 4. As to the first point he cited Cawthoriie v. 
 Cordret/'. 
 
 1 1.3 C. B. (n.s.) 40fi; 32 L. J. (C. P.) 152.
 
 250 BlUTAIN V. KCSSITER. [cHAP. II 
 
 Brett, L.J. It seems to nie that tliis contract is within the Statute 
 of Frauds, s. 4. I take the evidence to be clear in this case ; the contract 
 was made on the Saturday, and the terms of the contract were that tlie 
 plaintiff was to commence his service on the Monday, and to serve for 
 a year from the Monday, and to be paid for a year fi-om the Monday ; 
 therefore the contract was not to be performed within a year, and falls 
 within the Statute of Frauds, s. 4. It was contended that Cawthorne 
 V. Cordrei/' was contrary to our decision. It seems to me that that ease 
 contains two things, one a decision, and the other a dictum. The 
 decision is not against our judgment; for it was that although tlie 
 parties spoke to each other on a Sunday, tliere was evidence upon which 
 the juiy might find that the contract was made on the Monday, and 
 that tliat contract was for sei-vice for a year from that Monday, and 
 that the service was to be performed within a year from that time. 
 That decision was in accordance with all the other cases. If the contract 
 was made on the Monday, and if the service was to commence on the 
 Monday, it is obvious that the service was to be performed within one 
 year from the making of the contract. There was, however, a dictum 
 of Willes, J., which seems to be supported by the opinion of Byles, J. ; 
 tliese are great authorities ; and that dictum seems to have been that 
 if a contract is made on a day, say Monday, for a service for a year, 
 to commence on the following day, say a Tuesday, the service is to 
 be performed within 3G5 days fr'om the making of the contract, but that 
 inasmuch as the law takes no notice of part of a day, and the contract 
 was made in the middle of the Monday, the service to be performed 
 within 365 days after that, tlie law did not count that half day of the 
 Monday, and therefore the contract was to be performed within 365 
 days after it was made, and that was within a year. Tliis view was 
 founded upon a fiction, namely, that the law does not take notice of 
 part of a day. I am not prepared to say that under like circumstances 
 one might not follow tliat dictum and carry it to the length of a decision. 
 It is not necessary to say so here, because the case has not arisen. This 
 contract was made on the Saturday, and the service was not to begin 
 until the Monday, that is, not the next day to Saturday, but the day save 
 one after. The dictum does not apply. To say that the Sunday is not 
 to be counted in the year's service would not do, because if one Sunday is 
 not to be counted, no Sunday is to be counted. As to Cawthorne v. 
 Cordrey ' the decision is not different from other cases ; as to the dictum, 
 we can say nothing about it in this case, because the point does not arise. 
 Therefore we have not to overrule Cawthorne v. Cordrey^ either as to its 
 decision or its dictum. I think that the contract falls clearly within the 
 statute and within the principle of Bracegirdle v. IJeald'. Therefore no 
 rule will be granted as to the point whether the contract is within the 
 statute ; but the plaintiff may take a rule upon the questions whether the 
 1 13 C. B. (N.s.) 406; 32 L. J. (C. P.) 152. •■' 1 B. & Aid. 722.
 
 SECT. II] BRITAIN V. KOSSITER. 251 
 
 openition of the Statute of Fraud?, s. i, may be defeated by part 
 perfonnauce, and also whether the phiiutill' was entitled to any notice of 
 dismissal, a verbal contract being in existence. 
 
 COTTOX and TilEsiGER, L.JJ., concurred. 
 
 1879. March 4. J. C. Lawrance, Q.C., and P. B. Butchins, shewed 
 cavise. The plaintiff cannot recover in this action : SneVing v. Lord 
 HmitingfielcV shews that the express verbal contract of Saturday, the 
 21st of April, was still in existence, and that no fresh contract can be 
 implied from acts done in pursuance of it. That contract was for a year's 
 service to commence at a future day, and was therefore a contract not to 
 be performed within a year : Bracegirdlc \. He.ald'; Banks y. Crossland^; 
 nevertheless, whilst it remained unrescinded no other contract between 
 the parties can be implied. The words of the Statute of Frauds, s. 4, are 
 express, and no action can be brought upon a contract falling within its 
 prohibition : Leroux v. Brown*. The fact that the contract has been 
 partly performed, does not affect the position of tlie parties : Giraud v. 
 £ichinoruP. The equitable doctrine of part performance, whereby the 
 operation of tlie Statute of Frauds has been defeated, has always been 
 confined to contracts for the sale and purchase of lauds, and lias not been 
 extended to contracts of other kinds. 
 
 Firth, in support of tlie rule. A contract falling within the prohibi- 
 tion of the Statute of Frauds, s. 4, is void to all intents and purposes : 
 Garrington v. Boots'"; Reade v. LamV ; Inman v. Stamp". A contract 
 that is void in part is void altogether : Thomas v. WilUams^. Therefore 
 the contract of Saturday the 21st of April may be treated as no 
 contract, and a fresh contract of service may be implied from the acts 
 of tlie parties. 
 
 As to the doctrine of part performance, it is true that the Court 
 of Chancery formerly applied it only to contracts for the sale of land, 
 and there may have been a difficulty in decreeing specific performance of a 
 contract for personal services: Pickering v. Bishop of Elij^°; Johnson 
 V. Shrfwshury and Birmingham Ey. Co." But the Court of Chancery 
 would not allow the provisions of a statute to defeat a claim, which good 
 conscience required to be carried out: Bond v. Hopkins^'; Morphett v. 
 Jones'^. The defence set up by the defendant is wholly against good 
 conscience. And now by the Judicature Act, 1873 (36 & 37 Vict. c. 66), 
 s. 25, subs. 7, the doctrine of equity may be applied to cases decided 
 in the Common Law Divisions. 
 
 Brett, L.J. Upon the best consideration which I can give to 
 this case, it seems to me that tiiis rule should be discharged. I think 
 
 1 1 C. M. & E. 20. = 1 B. & Aid. 722. 3 Law Eep. 10 Q. B. 97. 
 
 ■• 12 C. B. 801. = 2 C. B. 835. " 2 M. & W. 248. ' 6 Ex. 130. 
 
 8 1 Stark. 12. » 10 B. & C. 664. i» 2 Y. & C. (Ch.) 249. 
 
 " 3 D. M. & G. 914. i-i 1 Sch. & Lef. 413. " 1 Swan. 172.
 
 252 BRITAIN V. EOSSITER. [CHAP. II 
 
 tliat Hawkins, J., was risilit, and that the Exchequer Division was 
 also right. It was clearly established that on Saturda)^ the 21st of 
 April, a contract of service was in express terms entered into between 
 the plaiutift' and the defendant that the plaintiff should serve the 
 defendant for one year, the contract to commence the Monday following. 
 It cannot be disputed that a contract of that kind is within the 4th 
 section of the Statute of Frauds, that is to say, it is a promise founded 
 upon a sufficient consideration, but it being only verbal neither party can 
 bring an action upon it so as to charge the other. It is, however, 
 contended that as the plaintiff did on Monday, the 23rd of April, 
 enter into the defendant's service and continue in it for some months, 
 another contract to serve for a year ought to be implied, attended 
 with the same consequences as the original contract, but outside the 
 Statute of Frauds. It is alleged that this contract can be implied, 
 because the contract originally entered into is void. But, according 
 to the true construction of the statute, it is not correct to say that 
 the contract is void; and, in my opinion, no distinction exists between 
 the -1th and 1 7th sections of the statute : at all events, the contract is not 
 void under the 4th section ; the contract exists, but no one is liable upon 
 it. It seems to me impossible that a new contract can be implied 
 from the doing of acts which were clearly done in performance of the 
 tirst contract only, and to infer from them a fresh contract would 
 be to draw an inference contrary to the fact. It is a proposition 
 wliich cannot be disputed that no new contract can be implied from 
 acts done under an express contract, which is still subsisting; all that 
 can be said is that no one can be charged upon the original contract 
 because it is not in writing. At the bar reliance was placed upon 
 Carrington v. Roots\ and Reade v. Lamb'; in the former case Parke, B., 
 said: "I think the right interpretation of" the 4th section of the 
 Statute of Frauds "is this, that an agreement which cannot be enforced 
 on either side is as a contract void altogether;" in the latter, Pollock, C.B., 
 said : " Carrington v. Roots' is in effect a decision that, for the purposes 
 of the present question, there is no distinction between the 4th and 
 17th sections of the Statute of Frauds, and that not only no action can be 
 Vjrou"ht upon an agreemeift within the 4th section of that statute if it be 
 not reduced into writing, but that the contract is also void." With 
 regard to these dicta it is enough to say that the doctrine thereby 
 laid down was unnecessary for the decisions in those cases : for it 
 being clear that no action can be brought on the verbal contract itself, 
 it is also clear that neither party can be held liable upon it indirectly 
 in any action, which necessitates the admission of the existence of the 
 contract. The two cases which I have mentioned were considered in 
 Leroux V. Broum^, and Jervis, C.J., undoubtedly took the same view 
 of them as I do, and gave the interpretation necessary for that case, 
 I 2 M. & W. 248. 2 6 Ex. 130. » 12 C. B. 801.
 
 SFCT. n] BRITAIN ('. ROSSITER. 2')3 
 
 uamely, that the contract is not void, but only incapable of being 
 enforced, and tliat any claim whicli depends upon the contract as such 
 cannot be maintained. If the contrary view had prevailed, it would 
 have been decided in that case that the Statute of Frauds, s. 4, had 
 a territorial operation ; whereas if it applies merely to the enforcement 
 of the contract, then it is a statute with respect to the procedure of 
 the English Courts, and it is applicable to contracts made abroad as well 
 as in England. Moreover, the case of SneJling v. Lord fluntinf/JidcV has 
 not been overruled by subsequent cases, but the doctrine there laid 
 down has been strongly supported by subsequent cases, and in my opinion 
 it certainly ought not to be overruled now. In my view the contract 
 entered into on the 21st of April was not void but existing, and from 
 a part performance of it a fresh contract ought not to be implied. 
 The plaintiiF, therefore, is driven to rely upon the original contract, 
 but he cannot maintain an action upon that, inasmuch as it is not 
 in writing. 
 
 It has been further contended that as the contract of the 21st of April 
 has been partly performed, it may be enforced, notwithstanding the 
 Statute of Frauds, and that the equitable doctrine as to part performance 
 may be applied to it. It is well known that where a contract for the sale 
 of land had been partly performed, Courts of Equity did in certain cases 
 recognise and enforce it ; but this doctrine was exercised only as to cases 
 concerning land, and was never extended to contracts like that before 
 us, because they could not be brought within the jurisdiction of Courts of 
 Equity. Those Courts could not entertain suits for specific performance of 
 contracts of service, and therefore a case like the present could not come 
 before them. As to the application of the doctrine of part performance 
 to suits concerning land, I will merely say that the cases in the Court 
 of Chancery were bold decisions on the words of the statute. The 
 doctrine was not extended to any other kind of contract before the 
 Judicature Acts : can we so extend it now 1 I think that the true 
 construction of the Judicature Acts is that they confer no new riglits ; 
 they only contirm the rights which previously were to be found existing in 
 the Courts either of Law or of Equity ; if they did more, they would alter 
 the rights of parties, whereas in truth they only change the procedure. 
 Before the passing of tlie Judicature Acts no one could be charged on this 
 contract either at law or in equity ; and if the plaintitT could now enforce 
 this contract, it would be an alteration of the law. I ani of opinion that 
 the law remains as it was, and that tlie plaintiff cannot maintain this 
 action for breach of contract. 
 
 Cotton, L.J. We refused to grant a rule on the ground that the 
 contract entered into on Saturday, the 21st of April, was to he performed 
 within a year, and therefore not within the operation of the 4th section of 
 
 1 C. M. & R. 20.
 
 254 liRlTAlN V. ROSSITER. [CHAP. II 
 
 the Statute of Frauds : the contract clearly was within that enactment : 
 on the other points we granted a rule, but after having heard the 
 arguments on behalf of the plaintiff, I think that the rule for a new trial 
 must be discharged. It has been contended that although tlie express 
 contract cannot be enforced, nevertheless a contract which can be enforced 
 may be implied from conduct of the parties, and it has been argued that 
 the rule docs not apply which forbids a contract to be implied where an 
 express contract has been concluded, because the contract was void 
 under the provisions of the Statute of Frauds, s. 4 : but in my opinion 
 that is not the true construction of the enactment, which provided 
 that no action shall be brought to charge any person upon the verbal 
 contract. 
 
 In the first place, I may observe that to hold that this enactment 
 makes void verbal contracts falling within its provisions, would be incon- 
 sistent with the doctrine of the Courts of Equity with regard to part 
 performance m suits concerning land. If such contracts had been rendered 
 void by the legislature, Courts of Equity would not have enforced them ; 
 but their doctrine was that the statute did not render the contracts void, 
 but required written evidence to be given of them : and Courts of Equity 
 were accustomed to dispense with that evidence in certain instances. 
 During the argument some decisions were relied upon as shewing that the 
 contract in the present case was void. In Carrington v. Hoots', certain 
 expressions were used by the judges which indicated that in their opinion 
 a verbal contract falling within s. 4 was void; but I think that their 
 language when carefully analysed merely means that the contract was 
 not enforceable either directly or indirectly by action at law. I think it 
 unnecessary to go into the case of Reach v. Lamh^: it was a case decided 
 upon special demurrer, and the question to which the attention of the 
 judges was directed, was whether the pleadings were correct in point of 
 form. 
 ' It has been further argued that the contract may be enforced, because 
 it has been in part performed. Let me consider what is the nature of the 
 doctrine as to part performance. It has been said that the principle of 
 that doctrine is that the Court will not allow one party to a contract to 
 take advantage of part performance of the contract, and to permit the 
 other party to change his position or incur expense or risk under the 
 contract, and then to allege that the contract does not exist ; for this 
 would be contrary to conscience. It is true that some dicta of judges 
 may be found to support this view, but it is not the real explanation of 
 the doctrine, for if it were, part-payment of the purchase-money would 
 defeat the operation of the statute. But it is well-established and cannot 
 be denied that the receipt of any sum, however large, by one party under 
 the contract, will not entitle the other to enforce a contract wliich comes 
 witliin the 4th sect. What can be move contrary to conscience than that 
 ' 2 M. & W. 248. 2 6 E^ 130. 
 
 I
 
 SECT. Il] BRITAIN V. ROSSITER. 255 
 
 after a man lias received a large sum of money in pursuance of a conti-act, 
 he should allege tliat it was never entered into? The true ground of the 
 doctrine in equity is that if the Court found a man in occupation of land, 
 or doing such acts with regard to it as would, prima facie, make him liable 
 at law to an action of trespass, the Court would hold that there was 
 strong evidence from the nature of the user of the land that a contract 
 existed, and would therefore allow verbal evidence to be given to shew the 
 real circumstances under which possession was taken. Does this doctrine, 
 when so explained, apply to the present ease ? I will first mention the 
 provisions of the J udicature Act, 1873, s. 24, subs. 4, 7. These provisions 
 enable the Courts of Common Law to deal with equitable rights and to 
 give relief upon equitable grounds : but they do not confer new rights : 
 the different divisions of the High Court may dispose of matters within 
 the jurisdiction of the Chanceiy and the Common Law Courts ; but they 
 cannot proceed upon novel principles. Could the present plaintiff have 
 obtained any relief in equity before the passing of the Judicature Acts 1 
 I think that he could not. The doctrine as to part performance has 
 always been confined to questions relating to land ; it has never been 
 applied to contracts of service, and it ought not now to be extended to 
 cases in which the Court of Chancery never interfered. 
 
 Thesiger, L.J. Two questions must be considered in this case — fiirst, 
 whether the plaintiff' could maintain an action at law : secondly, whether, 
 if he could not maintain an action at law, he could maintain a suit in 
 equity. I am compelled to subscribe to the opinion that the plaintiff had 
 no remedy either at law or in equity. I have been unwilling to come to 
 this conclusion, because it is manifestly unjust that where a contract 
 of hiring has been acted on for a certain time, one party who has 
 had the advantage of it should be able to put an end to it ; and 
 I should liave been glad to decide that the plaintiff was entitled to 
 a reasonable notice of dismissal. 
 
 First, lias the plaintiff" a right of action at law'! It is clear that 
 a contract was made on Saturday, the 21st of April, and it cannot 
 be contended that a contract made at that date to commence fi-om 
 the 23rd of April is not within the 4th section of the Statute of 
 Frauds. It is necessary to consider what is the effect of the statute 
 upon such a contract ; is it that the contract is wholly null so that 
 it doe.s not prevent the proof of any other contract, or is it that 
 the contract exists but cannot be enforced ? Certain dicta are to be 
 found in the books from which it might appear that some of the judges 
 have considered the verbal contract as absolutely void. But if those 
 dicta are carefully examined, it will be found that they are not necessary 
 for tlie decision of the cases in which they appear, and upon referring 
 to subsequent cases it will be found that it has been decided in clear 
 terms that the vei'bal conti'act is not actually vf>id. It is impossible
 
 256 BRITAIN V. ROSSITEK. [CHAP. ]I 
 
 to say that the words of tlie statute make the verbal contract void. 
 Tliat a verbal contract is not void, is proved by the circumstance 
 that where one party has signed the contract and the other has not, 
 the party who has signed may be charged upon it, but that the party 
 who lias not signed cannot be charged. It may also be urged witli 
 some shew of reason that though there is a difference in language 
 between the 4th and 17th sections of the Statute of Frauds, they are 
 substantially identical in construction, and Carrington v. Boots' and 
 lieade v. Lamb' may perhaps be cited in support of that argument. 
 And it is plain that verbal contracts under the 17th section are not 
 absolutely void for all purposes, for the section provides that part 
 performance by payment or acceptance and receipt of goods shall 
 authorize the court to look at the terms of the contract, although it 
 is not in writing. But I need not discuss tliis question further, for 
 in Snelling v. Lord Iluntingjield^, which has never been overruled but 
 on the contrary has been often followed, it was held that a contract 
 not enforceable by reason of the Statute of Frauds, sect. 4, nevertheless 
 existed, and no contract can be implied where an express contract exists. 
 I think that we are bound by the authority of that case. There was, 
 therefore, in existence a contract made in express terms on Saturday, 
 the 21st of April, and the plaintiff cannot sue upon it, as it is not in 
 writing. It appears to have been held that, though there may be no 
 right to recover on an executory contract, nevertheless, if it has been 
 executed to the extent of the contractee entering upon the service, that is 
 enough to entitle him to be paid for his services, and if we were not 
 bound by authority it would be difficult to understand why if the plaintiff 
 can sue for services rendered, he should not equally be entitled to allege 
 that he shall not be dismissed without notice or without such notice 
 as was stipulated for in the contract. But in Snelling v. Huntingjield^, 
 the Court of Exchequer appears to have thought that the contractee can 
 recover for services rendered but not for dismissal without notice. This 
 seems to have been the construction at Common Law. 
 
 If we turn to Equity, we find that it has been held as regards a sale of 
 land, that when there has been an entry by one party to the contract, that 
 is an overt act apparently done under a contract which entitles the Court 
 to look at the contract to see to what contract the overt act is really 
 referable. I confess that on principle I do not see why a similar doctrine 
 should not be applied to the case of a contract of service, and as the 
 doctrine of Equity is based upon the theory that the Court will not allow 
 a fraud on the part of one party to a contract on tlie faith of which 
 the other party has altered his position, I do not see why a similar 
 doctrine should not comprehend a contract of service. At the same 
 time I feel that doctrines of this nature are not to be unwarrantably 
 extended, and that we ought not to go further than the decisions of 
 ' 2 M. & W. 2i8. » 6 Ex. 1.80. ' 1 C. M. i- E. 20.
 
 SECT. II 
 
 HAILEY ('. SWEETINO. 257 
 
 Courts of Equity as to the principles of relief, and as to the instances to 
 which the doctrine of part perfonnance is to he applied. Therefore, as we 
 cannot clearly see that the equitable doctrine of part performance ought 
 to be extended to contracts of service, I think that we ought to keep 
 within the limits observed by the Court of Chancery liefore the passing of 
 the Judicature Acts, 1873, 1875*. 
 
 Ride discharged. 
 
 * See Mndilisnn v. Aldmsmi, 8 App. Cas. 167. En. 
 
 BAILEY AND ANOTHER r. SWEETING. 
 In the Common Pleas, January 17, 1861. 
 
 [Reported in 9 Cummon Bench, Kem Seru's, 843.] 
 
 This was an action brought to recover a sum of £76. lis. 3d. for 
 goods bargained and sold. The defendant paid 381. 3s. dd. into coui-t, and 
 as to tlie rest of the claim pleaded never indebted. 
 
 At the trial before Erie, C. J., at the sittings in London after last 
 Easter Term, the following facts appeared in evidence : — The defendant 
 was a furniture-dealer at Cheltenham : the plaintiffs were manufacturing 
 upholsterers and cabinet-makers in London. In July, 1859, the defendant 
 called at the plaintiffs' place of business in London, and then purchased 
 five chimney-glasses (a "job lot," as it was called), vj/iich were to be paid 
 for hy cheque on delivery. He at the same time purchased other goods on 
 credit to the amount of 39^. 10*-. 2d., some of which had to be made for 
 him. The chimney-glasses were packed and sent by carrier, addressed to 
 the defendant at Cheltenham. They were, liowever, found to be so 
 damaged when they reached their destination that the defendant refused 
 to receive them, and at once communicated such refusal to the plaintiffs. 
 
 The other goods were subsequently forwarded at three different times, 
 with separate invoices, and were duly received by the defendant. The 
 value of these parcels was covered by the payment into court : and the 
 question was, whether the defendant was liable in respect of the chimney- 
 glasses, the value of which with the cases was 38^. 10«. 6(/. 
 
 On the part of the plaintiffs it was insisted that the whole of the goods 
 were sold under one contract, and that the case was taken out of the 
 Statute of Frauds (29 Car. 2, c. 3, s. 17) by the acceptance of part. They 
 also relied upon the following letter addressed to them by the defendant, 
 as being a sufficient memorandum to satisfy the requirements of that 
 statute : 
 
 K. . 17
 
 258 HAILEY V. SWEETIXG. [CHAP. II 
 
 "Cheltciiliaiii, December 3rtl, 1859. 
 
 Gentlemen,— In reply to your letter of the 1st instant, I beg to say 
 tliat the only parcel of goods selected for ready money was, the chimney- 
 glasses, amounting to 38Z. 10s. 6d., which goods I liave never received, 
 and have long since declined to liave, for reasons made known to you at 
 tlie time. With regard to tlie other items, viz. III. is. 9d., HI. I3s. and 
 13^. 13«., for goods had subsequently (less cases returned), those goods are 
 I believe subject to the usual discount of 51. per cent. : and I am quite 
 ready to remit you cash for these parcels at once, and, on receipt of your 
 reply to this letter, will instruct a friend to call on you and settle 
 accordingly." 
 
 For the defendant it was insisted that the contract for the chimney- 
 glasses was a separate and distinct contract, and void for want of a 
 sufficient memorandum. 
 
 His lordship (at counsel's request) left it to the jury to say whether 
 the bargain for the chimney-glasses was a separate and distinct bargain 
 from that for the rest of the goods, telling them, that, if they were of that 
 opinion, they must find for the defendant. 
 
 Tlie jury found that the two were separate and distinct transactions, 
 and accordingly returned a verdict for the defendant. 
 
 Hawkins, Q.C., in Trinity Term last, pursuant to leave reserved 
 to him at the trial, obtained a rule nisi to enter a verdict for the plaintiffs 
 for 38^. lOs. 6d., on the ground tliat the defendant's letter of the 3rd of 
 December, 1859, was a sufficient memorandum or note in writing to 
 satisfy tlie statute, or for a new trial on the ground that the verdict was 
 against evidence. 
 
 H. James and Tompson Chitty shewed cause. The whole was not 
 necessarily one contract because all the goods were purchased at one and 
 the same visit to the warehouse. In truth, the contract for the cliimney- 
 glasses for ready money was totally distinct from that for the other goods, 
 which were bought on credit. It was clearly a question for the jury. 
 The more important question, however, is, whether the defendant's letter 
 of the 3rd of December, 1859, was a sufficient note or memorandum of the 
 bargain to satisfy the statute. The subject is adverted to in Mr. Justice 
 Blackburn's treatise on the Contract of Sale, p. 66, where the learned 
 author says : " It sometimes happens, that, after a dispute has arisen, 
 a party in a letter signed by him recapitulates the whole terms of the 
 bargain, for the purpose of saying that the bargain is at an end for some 
 reason which is evidently insufficient in law. It has never been decided 
 whether such an admission of the terms of the bargain, signed for the 
 express purpo.se of repudiation, can be considered a memorandum to make 
 the contract good ; but it seems difficult on principle to see how it can be 
 so considered. The parties may either of them put an end to the contract 
 at any time whilst it is not good, with cause or without cause ; and a 
 memorandum of the terms comes too late to make a contract "ood which
 
 SECT. U] I'.AII.EY ('. SWKKTlNi;. 259 
 
 is alroady put an end to. Tlioiv is o\ icicutly a great ditierenee lietweeu a 
 writing wiiieli, after the dispute lias arisen, mentions tlie terms of tlie 
 contract for the purpose of shewing that tlie liargain is at an end, and one 
 wliicli recognizes them as still subsisting. I know only of three cases in 
 whicli this point could have been decided ; and, though in each of tliem 
 the memorandum was held insufficient, they seem to have been decided on 
 special grounds. 
 
 Hawkins, Q.C., and Kemplaij, in support of the rule'. 
 
 Erle, C. J. This was an action for goods sold and delivered. There 
 was an oral contract for the sale and delivery of the goods in question : 
 but the defendant relies upon tlie Statute of Frauds, and contends that 
 there was no note or memorandum of the bargain in writing to satisfy that 
 statute. After the making of the oral contract, however, there was a 
 letter written by the vendee to the vendors, which contains this state- 
 ment, — " The goods selected for ready money was the chimney-glasses, 
 amounting to 38?. 10s. 6t7." (the goods in dispute), "which goods I have 
 never received, and have long since declined to have, for reasons made 
 known to you at the time," — the reason being, that, in consequence of the 
 negligence of the carrier through whom they were sent, the goods were 
 damaged. Now, the first part of that letter is unquestionably a note or 
 m3a:orandum of the bargain : it contains a description of the articles sold, 
 the price for which they were sold, and all the substantial parts of 
 the contract. If it had stopped there, there could be no dispute as to its 
 being a sufficient note or memorandum to satisfy the statute. It is clear 
 that the note or memorandum may be made after the time at whicli 
 the oral contract takes place ; and, to my mind, tliat which passed orally 
 between the parties on the subject of the bargain in July, was in th ) 
 nature of an inchoate contract, and the subsequent letter had a retroactive 
 effect, making the contract good and binding. The latter part of the 
 defendant's letter in effect says, " I decline to take the goods because the 
 carrier damaged them in their transit : " and it is contended, on his part 
 that the acknowledgment at the beginning of the letter does not 
 constitute a sufficient memorandum within the statute, because the latter 
 part contains a repudiation of his lialjility, — relying much on the passage 
 cited from my Brother Blackburn's book on the Contract of Sale, where it 
 is suggested that a subsequent acknowledgment in writing has not the 
 efifect of making the contract good, if it is accompanied by a repudiation 
 of the defendant's liability under it. A case is referred to, of Ruiuleau v. 
 Wyatt, 2 H. Bl. 63, where an answer to a bill of discovery, in which the 
 defendant admitted the agreement, was held not to preclude him from 
 taking the objection that there was no note or memorandum to satisfy the 
 Statute of Frauds. We have adverted to the authorities cited in Mr. 
 Justice Blackburn's book, and to the case of Rondeau v. ]VyaU ; but 
 
 • ' The arguments are omitted. Ed. 
 
 17—2
 
 ■liJO HAIl.EY V. SWEETINC. [c'HAP. 11 
 
 wo timl no tlocidetl authority upon the point in judgment. In that state 
 of the authorities, we are remitted to the Statute of Frauds itself : and, 
 upon reference to its language, we think the defendant's letter does 
 amount to a sufficient memorandum in writing, and makes the contract 
 good. The purpose of tlie statute was, to prevent fraud and perjury. 
 Now, the danger of perjury in this case is eifectually prevented by the 
 letter of the defendant; for, he distinctly admits that he made the 
 contract, and at the price alleged. I do not consider that the defendant 
 intended to deny his liability by reason of the absence or insufficiency of 
 the contract : but that the only question which he intended to raise, was, 
 whether he or the plaintiffs should settle with the carriers for the damage 
 done to the soods. I think that constitutes a material distinction between 
 the present case and those cited, in which the defendant, admitting 
 the contract, has rested his defence on the non-compliance with the 
 statute. But, if there be no such distinction, and we are called upon to 
 consider whether the doctrine suggested in my Brother Blackburn's l>ook 
 correctly represents the law upon this subject, with the highest respect for 
 that clear-headed and highly eminent judge, 1 must say that I am unable 
 to give my assent to his proposition'. I think the purpose of the Statute 
 of Frauds is answered by the defendant's letter, and that the plaintifls are 
 entitled to recover. 
 
 W1LLIAM.S, J. I am entirely of the same opinion. It cannot for a 
 moment be controverted here, that in point of fact there was a good and 
 lawful contract between the plaintiffs and the defendant for the sale of 
 the goods in question. But it is equally clear, that, as the price of the 
 goods bargained for exceeded the value of 10/., the contract was not an 
 actionable one unless the requisites of the 17th section of the Statute of 
 Frauds were complied with ; that section enacting, " that no contract for 
 the sale of any goods, wares, and merchandizes for the price of 10/. 
 sterling or upwards, shall be allowed to be good, except (1) the buyer 
 shall accept part of the goods so sold and actually receive the same, 
 or (2) give something in earnest to bind the bargain or in part of payment, 
 or (3) that some note or memorandum in writing of the said bargain be 
 made and signed by the parties to be charged by such contract, or their 
 agents tiiereunto lawfully authorized." 
 
 The efl'ect of that enactment, is, that, although there is a contract 
 
 ' In the case of Bn.rton v. Eut:t, L. E. 7 Ex., at p. 2S2, Mr. Justice Blackburn 
 remarked with regard to the passage here commented upon : "I may add with reference 
 to the statement read from Blackburn on the Contract of Sale, p. 66, to the effect that 
 'it seems difficult on principle to see how an admission of the tei-ms of a bargain 
 signed for the express purpose of repudiation can be considered a memorandum to 
 make the contract good,' that the point has been clearly settled since the publication 
 of that book by the decisions of the Court of Common Pleas, which have been referred 
 to, and from which I do not see any reason to dissent; the rule they establish is as 
 logical and more convenient than that suggested by myself." -Ed.
 
 SECT. Il] BAILEY C. SWEETING. 261 
 
 which is a good and valid contract, no action can be maintained upon it, 
 if made by word of mouth only, unless something else has liappened, 
 ex. <'!■., unless there be a note or memorandum in writing of the bargain 
 siwned by the party to be charged. As soon as such a memorandum 
 comes into existence, the contract becomes an actionable contract. The 
 question, therefore, in the present case, is, whether such a memorandum 
 has come into existence. It is plain to my mind that the terms of tiie 
 defendant's letter of the 3rd of December do constitute such a memorandum 
 as the statute contemplated. It completely recites all the essential terms 
 of the bargain : and the only question is whether it is the less a note 
 or memorandum of the bargain, because it is accompanied by a statement 
 that the defendant does not consider himself liable in law for the 
 performance of it. There is nothing in the statute to warrant that. 
 I think the statute is satisfied, and that the contract is an actionable 
 contract. It is said that there may be a difficulty in maintaining this 
 doctrine, in consequence of the inconvenience which may arise from the 
 property not passing by the contract until it has become capable of being 
 enforced by action. That may be true : but the same may be said as to 
 part acceptance or the payment of earnest, and yet nobody ever sugge.sted 
 a doubt that an action might be brought upon a verbal contract where 
 either of these things has taken place. I entirely agree with my Lord in 
 his appreciation of my Brother Blackburn's book : but, after fully 
 considering the proposition which has been cited from it, and the 
 reasoning upon which that proposition is based, I feel bound to say that I 
 do not consider it satisfactory. The right of the defendant to put an end 
 to the contract, if any such right existed, ought not to afiect the question 
 whether there was a valid contract or not. There was a valid contract, 
 and the memorandum was a sufficient memorandum. The intention of the 
 defendant to repudiate or abandon the contract cannot afiect the question 
 as to the sufficiency or insufficiency of it. 
 
 WiLLES, J. I am of the same opinion. No doubt there was a 
 contract between the plaintifis and the defendant for the purchase of the 
 goods in question by the latter, and, assuming it to be a good contract, 
 the defendant would be bound to pay the price. At common law, it is 
 clear that the plaintifis would have a good cause of action : but it is 
 insisted that no action can be maintained, by reason of the 17th section 
 of the Statute of Frauds. I found my opinion in favour of the plaintifis 
 entirely upon the construction of that section ; for, there is no authority 
 on either side, except the passage quoted from my Brother Blackburn's 
 book. It is impossible that anybody can attribute more weight than I do 
 to any thing that falls from that learned judge : but, whatever distrust I 
 may under the circumstances be disposed to entertain, I must still act 
 upon my own opinion. Look at the words of the statute. They ai-e, 
 "no contract for the sale of any goods &c. shall be allowed to be good,
 
 l'C2 BAILEY V. SWEETING. [CHAP. II 
 
 except, — tluit some note or memorandum in writing o£ the said bargain be 
 made and signed by the parties to be charged by sucli contract, or tlieir 
 :i:,'ents tliereunto lawfully authorized." It follows from these word.s, that, 
 if tliere be any note or memorandum in writing of the bargain signed by 
 the party to Ik; charged, the contract is to be allowed to be good as at 
 common law. Unquestionably there is in the present case a note or 
 memorandum in writing ; and upon the true construction of the statute, I 
 think, a sufficient note. The defendant in the letter says, — "I selected 
 the goods for ready money ; and the price agreed on was 38Z. 10s. &d." 
 That clearly is a memorandum containing the terms of the bargain. 
 It is urged that tliis letter was not a sufficient note or memorandum 
 to satisfy the statute, because it is accompanied by a statement shewing 
 that the defendant did not wsh to be bound by the contract. It seems to 
 me that to hold that that circumstance is to operate to prevent the letter 
 being such a memorandum as the statute contemplated, would be depriving 
 the word "some," or the correlative word "any" of its natural meaning 
 and effect. The requisites of the statute have been complied with : 
 and there is nothing in the statute to say that the note or memorandum 
 is to be defeated by any collateral circumstances. Upon that simple 
 ground, it seems to me that tliis contract stands good, and that the 
 plaintifls are entitled to recover. 
 
 Keating, J. I am of the .same opinion. No doubt the contract 
 in this case was good if evidenced by writing. The object of the Statute 
 of Frauds was, to provide the certainty of written evidence for the 
 uncertainty of oral evidence of contracts. The defendant's letter of the 
 3rd of Decemlier does contain all the terms of the bargain between these 
 parties. It is said that that letter ceases to be a note or memorandum of 
 the contract, because the defendant has thought fit to add to it an 
 intimation that he does not wish or intend to be bound by it. It seems to 
 me, however, that that statement cannot be allowed to vary the operation 
 of the previous words of the letter, which amount to a clear acknowledg- 
 ment of the terms of the bargain. I should not have entertained the 
 slightest doubt upon the subject, but for the passage quoted from Mr. 
 Justice Blackburn's book. But the leai-ned author merely throws it out 
 as an intimation of opinion, which he admits to have no authority or even 
 dictum in its favour. For these reasons, I concur with the rest of the 
 court in thinking that the rule to enter a verdict for the plaintiffs for 
 .■?8/. 10*. G(7. should be made absolute. 
 
 Rule absolute accorcUnr/ly.
 
 CHAPTER in. 
 
 CONSIDEBATION. 
 SECTION I. 
 
 DESCRIPTION OF CONSIDERATION. 
 
 ELEANOR THOMAS v. BENJAMIN THOMAS. 
 
 In the Queen's Bench, February 5, 1842. 
 
 [Reported in 2 Queen's Bench Reports, 851.] 
 
 Assumpsit. The declaration stated an agreement between plaintiff 
 and defendant that the defendant should, when thereto required by the 
 plaintiff, by all necessary deed.s, conveyances, assignments, or other 
 assurances, grants, &c., or otherwise, assure a certain dwelling-liouse 
 and premises, in the county of Glamorgan, unto plaintiff for her life, or 
 so long as she should continue a widow and unmarried ; and that plaintiff 
 should, at all times during which she should have possession of the 
 said dwelling-house and premises, pay to defendant and one Samuel 
 Thomas (since deceased), their executors, administrators, or assigns, the 
 sum of 11. yearly towards the ground-rent payable in respect of the said 
 dwelling-house and other premises thereto adjoining, and keep the said 
 dwelling-house and premises in good and tenantable repair. That the 
 said agreement being made, in consideration tliereof and of plaintiff's 
 promise to perform the agreement, Samuel Thomas and the defendant 
 promised to perform the same ; and that although plaintiff afterwards 
 and before the commencement of the suit, to wit, &c., required of 
 defendant to grant, itc, by a necessary and sufficient deed, ic, the 
 said dwelling-house, itc, to plaintiff for her life, or whilst she continued 
 a widow ; and though she had then continued, ifec, and still was, a 
 widow and unmarried, and although she did, to wit, on, itc., tender to 
 the defendant for his execution a certain necessary and sufficient deed, 
 ifcc, proper and sufficient for the conveyance, ikc, and although, &c. 
 (general readiness of plaintiff to perform), yet defendant did not nor 
 would then or at any otlier time convey, &c.
 
 264 THOMAS V. THOMAS. [CHAP. Ill 
 
 Pleas: 1. Non assumpsit. 2. That there was not the consideration 
 alleged in the declaration for tlie defendant's promise. 3. Fraud and 
 covin. Issues thereon. 
 
 At the trial before Coltman, J., at tlie Glamorganshire Lent assizes, 
 1841, it appeared that John Thomas, the deceased husband of the 
 plaintitJ', at the time of his death, in 1837, was possessed of a row of 
 seven dwelling-houses in Merthyr Tydvil, in one of which, being the 
 dwelling-house in question, he was himself residing ; and that by his 
 will he appointed his brother Samuel Thomas (since deceased) and 
 the defendant executors thereof, to take possession of all his houses, 
 itc, subject to certain payments in the will mentioned, among which 
 were certain charges in money for the benefit of the plaintiff. In the 
 evening before the day of his death he expressed orally a wish to make 
 some further provision for his wife; and on the following morning he 
 declared orally, in the presence of two witnesses, that it was his will 
 that his wife should have either the house in which he lived and all 
 that it contained, or an additional sum of 1001. instead thereof. 
 
 This declaration being shortly afterwards brought to the knowledge 
 of Samuel Thomas and the defendant, the executors and residuary 
 legatees, they consented to carry the intentions of the testator so ex- 
 pressed into effect ; and after the lapse of a few days they and the plaintiff 
 executed the agreement declared upon, which, after stating the parties and 
 briefly reciting the will, proceeded as follows : — 
 
 " And whereas the said testator, shortly before his death, declared, 
 in the presence of several witnesses, that he was desirous his said wife 
 should have and enjoy during her life, or so long as she should continue 
 his widow, all and singular the dwelling-house," &c., "or 100^. out of 
 his personal estate," in addition to the respective legacies and bequests 
 given her in and by his said will; "but such declaration and desire was 
 not reduced to writing in the lifetime of the said John Tliomas and 
 read over to him ; but the said Samuel Thomas and Benjamin Thomas 
 are fully convinced and satisfied that such was the desire of the said 
 testator, and are willing and desirous that such intention should be 
 carried into full effect : Now these presents witness, and it is hereby 
 agreed and declared by and between the parties, that, in consideration 
 of such desire and of the premises," the executors would convey the 
 dwelling-house, Ac, to the plaintiff and her assigns during her life, or 
 for so long a time as she should continue a widow and unmarried : 
 "provided nevertheless, and it is hereby further agreed and declared, 
 that the said Eleanor Thomas or her assigns shall and will, at all times 
 during which she shall have possession of the said dwelling-house, <fec., 
 pay to the said Samuel Thomas and Benjamin Thomas, their executors, 
 •tc., the sum of 11. yearly towards the ground-rent payable in respect 
 of the said dwelling-house and other premises thereto adjoining, and 
 shall and will keep the said dwelling-house and promises in good and
 
 SECT, l] THOMAS V. THOMAS. 2 Go 
 
 tenantable repair : "' with other provisions not aflecting the tiuestions in 
 tliis ease. 
 
 The plaintiff was left in possession of the dwelling-house and premises 
 for some time ; but the defendant, after the death of his co-executor, 
 refused to execute a conveyance tendered to him for execution pursuant 
 to the agreement, and shortly before the trial brought an ejectment, 
 under which he turned the plaintiff out of possession. It was olijected 
 for the defendant that, a part of the consideration proved being omitted 
 in the declaration, there was a fatal variance. The learned judge over- 
 ruled the objection, reserving leave to move to enter a nonsuit. Ulti- 
 mately a verdict was found for the plaintiff on all the issues ; and in 
 Easter term last a rule nisi was obtained pursuant to the leave reserved. 
 
 Chilton and W. M. James now shewed cause. It is sufficient if there 
 be any legal consideration for this agreement. [E. V. Williams conceded 
 that, in a court of law, he could not go into the adequacy of the con- 
 sideration, and that, if the consideration was in part a legal and in 
 part only a moral one, the latter part need not be stated in the decla- 
 ration '.] The objection taken at the trial was, that the consideration 
 for the agreement, instead of being that which is alleged in the declaration, 
 was, as stated in the agreement itself, a respect for the testator's intentions, 
 in which case this would be a mere voluntary agreement : the defendant 
 now appears to contend that respect for the testator s intentions is a part 
 of the legal consideration, and ought to have been set out. But it could 
 not be so characterized. All that a plaintiff is required to do is to set out 
 the legal effect of the contract, and to shew performance on the plaintiff's 
 part : here she was in possession for three or four years paying rent, 
 under an undertaking to pay rent and keep the premises in repair : that 
 is a good consideration ; and if so, it cannot be necessary in pleadin"- 
 it to allege additional motives, which, in the eye of the law, do not enter 
 into the consideration. Thus, in debt for rent on a demise of a messuage 
 with the furniture, though in fact tlie furniture forms an important item 
 in estimating the rent, yet, as in point of law the rent issues out of 
 the real property, and not out of the furniture, it is suthcient to allege 
 a demise of tlie real property. Farewell v. Dickenson, ^. Parties are 
 often inHuenced by motives which form no part of the legal consideration, 
 such as the character of a tenant, or tlie merits or distresses of the party 
 intended to be benefited ; and the circumstance that such motiv'es happen 
 to be stated in the agreement cannot affect the legal riglits of the parties, 
 nor make it necessary to state tliose motives in the declaration. 
 
 E. V. WiUiams, contra. Tlie consideration alleged in the declaration 
 is solely the promise to pay rent and repair : therefore it lay on the 
 plaintiff to prove that to have been the true and sole consideration. 
 Beech v. White ^ But the evidence shews that the testator's declaration, 
 
 1 On this point Chilton cited Bui. N. P. 117, and 1 Chitt. Plead. 295, 300, Oth ed. 
 = 6 B. it C. 251. •' 12 A. & E. GG8.
 
 266 THOMAS V. THOMAS. [CHAP. Ill 
 
 as brouglit before and recognized by the executors, was part, if not 
 the whole, of the consideration. It is conceded that where there is a 
 good legal con.sideration conjoined witli a moral one, it is not necessary 
 to state both ; but iiere regard for the testator's intentions was not, 
 under the circumstances, a mere moral consideration ; for the declaration 
 had been made and reduced to writing so formally that it might well 
 be thought valid in law, and so the agreement be made by the executors 
 and residuary legatees to buy peace '. If the testator's expressed wish 
 was part or the whole of the consideration, the declaration should have 
 so alleged it, and a nonsuit ought to be entered. But in fact, if it be not 
 the consideration, there is no legal consideration at all : this is a mere gift 
 cum onere ; and, had it been stated truly, the declaration would have been 
 bad on general demurrer. [Patteson, J. The rent, if issuing out of the 
 house, might follow the gift ; but the obligation to repair does not.] The 
 expi'essions in the agreement with reference to the ground-rent, and the 
 evidence of one of the witnesses, shew that the property was held under 
 a superior landlord : the assignee's obligation to pay rent and repair would 
 therefore be implied from the very nature and state of things which 
 existed between the parties. Bayley, J., in Burnett v. Lyncli ". [Lord 
 Denuan, C J. There is nothing to shew who was liable to pay the 
 ground-rent. Coleridge, J. The \l. is reserved payable to the executors: 
 it is quite different from an assignee's liability.] Still the annexing of 
 such a payment cannot be regarded as the consideration. What is meant 
 by the consideration for a promise, but the cause or inducement for 
 making it? Plowden^, commenting on Sltarrington v. Strotton, says, 
 " Note : That by the civil law nudum pactum is defined thus : Nudum 
 pactum est ubi nulla subest causa prieter conventionem ; sed ubi subest 
 causa, fit obligatio, et parit actionem." In Chitty on Contracts'* the 
 following passage is cited from the Code Civil : " L'obligation sans cause, 
 ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun 
 efi'et." The rent and repairs cannot be said to have been the cause 
 or motive which induced the executors to make this agreement : it must 
 liave been such a belief as is recited in the agreement itself, which, though 
 a good moral consideration, and perhaps sufficient to raise a use, is not 
 sufficient to support a promise. The proviso merely causes the donee 
 to take the gift charged with the burthen of paying the rent and keeping 
 the premises in repair ; and she cannot turn these conditions into a 
 consideration. It is clear that, if the proviso had not existed, the 
 executors might have retracted at any moment ; their right to do so 
 cannot be qualified liy the circumstance that the gift was ctiin onere ; 
 
 ' See Ilaigh v. BmoU, 10 A. & E. 309, and BrooU v. 7/((iV;7i, 10 A. A- E. 323. 
 2 5 B. & C. 589, 605. See also the judgments of Hohoyd, J., and Littledale, J., in 
 the same case. 
 
 ■■' Note to Slwrrhtplnn v. fitrottnn, Plowd. 309. 
 
 * r. 28, 3d ed. 1811. CWc Civil, liv. 3, tit. 3, ch. 2, §§ 4 and 1131.
 
 SECT. l] THOMAS V. THOMAS. 2G7 
 
 otlierwise, when carried out to conveyance, it would be a. conveyance 
 on good, as distinguished from valuable, consideration. Suppose a sub- 
 sequent sale ; a purchaser for value would have been entitled, though 
 he had purchased with notice of the gift. A consideration, to be sufficient 
 against such a purchaser witliin the saving clause of the 27 Eliz. c. 4, 
 s. 4 ', must be such a consideration as would support an assumpsit. Were 
 it otherwise, donees by voluntary gift would confirm their estates by 
 covenanting to repair a monument, maintain a plantation, or the like. 
 Here the donors in effect say, that the donee is to pay no purchase-money, 
 but is to do what a purchaser for full consideration would have to do, — 
 pay the rent and maintain in repair. And it is to be observed that, 
 in that part of the agreement where the purchase-money is usually 
 mentioned, instead of any valuable consideration there is a mere reference 
 to the testator's wishes ; which is followed in a different part of the deed 
 by a simple provision for the burthens commonly belonging to and incident 
 to the subject-matter. The defendant is therefore entitled to a verdict on 
 the first issue. 
 
 LoKD Denman, C. J. There is nothing in this case but a great deal 
 of ingenuity, and a little wilful blindness to the actual terms of the 
 instrument itself. There is nothing whatever to show that the ground- 
 rent was payable to a superior landlord ; and the stipulation for the 
 payment of it is not a mere proviso, but an express agreement. (His 
 Lordship liere read the proviso.) This is in terms an express agreement, 
 and shews a sufficient legal consideration quite independent of the moral 
 feeling which disposed the executors to enter into such a contract. 
 ]Mr Williams's definition of consideration is too large : the word causa 
 in the passage referred to means one which confers what the law considers 
 a benefit on the party. Then the obligation to repair is one which might 
 impose charges heavier than the value of the life estate. 
 
 Patteson, J. It would be giving to causa too large a construction 
 if we were to adopt the view urged for the defendant : it would be 
 confounding consideration with motive. Motive is not the same thing 
 with consideration. Consideration means something which is of some 
 ■\alue in the eye of the law, moving from the plaintiff: it may be some 
 detriment to the plaintiff, or some benefit to the defendant ; but at all 
 events it mu.st be moving from the plaintiff". Now that which is suggested 
 as the consideration here, a pious respect for the wishes of the testator, 
 does not in any way move from the plaintiff : it moves from the testator ; 
 therefore, legally speaking, it forms no part of the consideration. Then 
 
 ' See Newland on Contracts, c. 24, p. 392, et seq. 
 
 ' In the case of Currie v. Misn, L. R. 10 Ex. at p. 1C2, the following description of 
 consideration is given by the Excheriuer Chamber: "A valuable consideration, in the 
 sense of the law, may consist either in some iii;ht, interest, prolit, nr benefit aecrning 
 to one party, or some forbearance, detriment, lass, or rusponsibihty, given, suffered, or 
 undcrtalien by the other." Ed.
 
 268 THOMAS V. THOMAS. [CHAP. Ill 
 
 it is said that, if that l)e so, tliere is no consideration at all, it is a mere 
 voluntiiry gift : but when we look at tlie agreement we find that tliis 
 is not a mere proviso that tlie donee shall take the gift Midth the burthens; 
 but it is an express agreement to pay what seems to be a fresh apportion- 
 ment of a ground-rent, and wliicli is made payable not to a superior 
 landlord but to the executors. So that this rent is clearly not something 
 incident to the assignment of the house ; for in that case, instead of being 
 payable to the executors, it would have been payable to the landlord. 
 Then as to the repairs: these houses may very possibly be held under 
 a lease containing covenants to repair ; but we know nothing alx>ut it : 
 for any thing that appears, the liability to repair is first created by this 
 instrument. The proviso certainly struck me at first as Mr. Williams 
 put it, that the rent and repairs were merely attached to the gift by the 
 donors ; and, had tlie instrument been executed by the donors only, there 
 miglit have been some ground for that construction ; but the fact is not 
 so. Then it is suggested that this would be held to be a mere voluntary 
 conveyance as against a subsequent purchaser for value : possibly that 
 might be so : but suppose it would : the plaintitf contracts to take it, and 
 does take it, whatever it is, for better for worse : perhaps a bona Jide 
 purchase for a valuable consideration might override it ; but that cannot 
 be helped. 
 
 Coleridge, J. The concessions made in the course of the argument 
 have in fact disposed of the case. It is conceded that mere motive need 
 not be stated ; and we are not obliged to look for the legal consideration 
 in any particular part of the instrument, merely because the consideration 
 is usually stated in some particular part : id res mac/is valeat, we may look 
 to any part. In this instrument, in the part where it is usual to state 
 the consideration, nothing certainly is expressed but a wish to fulfil 
 the intentions of the testator ; but in another part we find an express 
 agreement to pay an annual sum for a particular purpose, and also 
 a distinct agreement to repair. If these had occurred in the first part of 
 the instrument, it could hardly have been argued that the declaration was 
 not well drawn and supported by the evidence. As to the suggestion of 
 this being a voluntary conveyance, my impression is that this payment of 
 1/. annually is more than a good consideration : it is a valuable con- 
 sideration : it is clearly a thing newly created, and not part of the old 
 ground-rent. 
 
 Eule discharged.^ 
 
 1 In a commentary on the Code Civil, in Codes Fmnrais ExpUques, &c., by J. A. 
 Rogron, Paris, 1836, the words of the Code, "L'obligation sans cause, on sur vme fausse 
 cause, ou sur une cause illicite, ne peut avoir aucun effet" {ante, p. 206), are discussed; 
 and the note upon "sans cause" is as follows: — 
 
 "La cause est ce qui determine I'engagement que prend une partie dans \m cen- 
 tral ; il ne faut pas la confondre avec la cause implicite du contrat, autrement le motif 
 qui porte a contracter. La cause de I'engagement d'une partie est le fait ou la pro-
 
 SECT. Il] PILLANS V. VAN MIKRDP. 200 
 
 SECTION ir. 
 
 NECESSITY OP CONSIDERATION. 
 
 PILLANS AND ROSE v. VAN MIEROP AND HOPKINS. 
 In the King's Bench, April 30, 1763. 
 
 [Reported in 3 Buiroir, 1G63.] 
 
 On Friday 25th of January last, Mr. Attorney General Norton, on 
 liehalf of the plaintifis, moved for a new trial. He moved it as upon 
 a verdict against evidence : the sub.stance of which evidence was as 
 follows. 
 
 One White, a merchant in Ireland, desired to draw upon the plaintiffs, 
 who were niercliants at Rotterdam in Holland, for 800A payable to one 
 Cliflbrd ; and proposed to give them credit upon a good house in London, 
 for their reimbursement ; or an}' other method of reimliursement. 
 
 The plaintiffs, in answer, desired a continued credit upon a house of 
 rank in London ; as tlie condition of their accepting the bill. Wliite 
 names the house of the defendants, as this house of rank ; and offers 
 credit upon them. Wliereupon the plaintiffs honoured the draught, and 
 paid the money ; and then wrote to the defendants Van Mierop and 
 Hopkins, merchants in London, (to whom Wliite also wrote, about tlie 
 same time,) desiring to know wliether tliey would accept such bills as 
 tliey, the plaintiffs, should in about a month's time draw upon the said 
 Van Mierop's and Hopkins's house here in London, for 800/. upon the 
 credit of Wliite : and they, having received tlieir assent, accordingly drew 
 upon tlie defendants. In the interim White failed before their draught 
 came to hand, or was even drawn ; and the defendants gave notice of it to 
 the plaintiffs, and forbid their drawing upon them. Which they, never- 
 theless, did : and therefore the defendants refused to pay their bills. 
 
 messe de I'autre partie; elle peut aussi consister daus une pure libCralile de la part de 
 I'uue des parties: ainsi, lorsque je m'oblige a payer mille francs a Paul, pour tels ser- 
 vices que son pere m'a reudus, la cause diStermiuaute du contrat, ce sont les services 
 qui m'ont iti rendus; le motif qui m'a porte il contracter, c'est le dish de m'acquitter 
 envers lui des services de son pere ; si celui-ci ne ra'a jamais rendu les services dout il 
 a iti parle dans I'acte, le contrat est sans cause. Je m'oblige a douner mille francs il 
 Paul pour qu'il suive une affaire pendante devant le tribunal de la Seine : la cause 
 determinante est la promesse de Paul qu'il suivra mou affaire ; si elle est jugee irre- 
 vocablement au moment ou nous avons stipule, le contrat est sans cause. Autre 
 exemple : je vous vends ma maison ; la cause de la vente est, d'un cdti, la maison 
 elle-meme, de I'autre, le prix. Enfin je donne, dans la forme de dispositions entre 
 vifs, ma maison a Paul, qui I'accepte: ma liberalite est ici la seule cause du contrat." 
 p. 209.
 
 270 I'll.l.AXS ('. VAX MIK.IKM'. [ci'AP. Ill 
 
 On till' trial, a vonlict was found for the defendants. 
 
 Upon sliewing cause, on iMonday 11th February hist, it turned upon 
 the several letters that had respectively passed between the plaintiffs, and 
 defendants, and White. The letters were read: 1st., tliose' from White 
 and Co. in Ireland, to the plaintiffs in Holland ; (by which it appeared 
 tliat Pillans and Rose had then accepted the bills drawn upon them ))y 
 White, payable to ClitTord ;) then those of the plaintiffs to tlie defendants ; 
 and also White's to the defendants ; then those of the defendants to the 
 plaintiff's ', agreeing to honour their bill drawn on account of White ; the 
 letter from the defendants to the plaintiffs, informing them that White 
 liad stopped payment, and desiring them not to draw, as they could not 
 accept their draught; and lastly that which the plaintiffs wrote to the 
 defendants, that they should draw on them, holding them not to be at 
 liberty to withdraw from their engagement. 
 
 Tlie counsel for the defendants were Mr. Serjeant Davy and Mr. 
 Wallace. They observed that the plaintiffs had given credit to White, 
 above a month before the defendants had agreed to accept their draught. 
 For it appears by White's letter of IGth February 1762, that Pillans and 
 Rose had then actually accepted Clifford's bills: but Van Mierop and 
 Hopkins did not agree to honour their draughts till 19th of March, 1762. 
 Therefore the consideration was pa.st and done, before their promise was 
 made. And they argued, and principally insisted, that for one man to 
 undertake to pay another man's debt, was a void undertaking ; unless 
 there was some consideration for such undertaking : and that a mere 
 general promise, without benefit to the promiser, or loss to the promisee, 
 was a nudum jKictum. And they cited 1 Bulstr. 120, Thoriier v. Field. 
 Dyer, 272, pi. 31, Uunt v. Bate. 2 Vern. 224, 22.5, Cecil et al. v. Earl of 
 Salisbury. 1 Ro. Abr. 11, pi. 1, Letter Q. "Consideration executed." 
 Yelv. 40, 41, and 2 Strange, 933. Hayes v. Warren; where a past 
 consideration was holden insufficient to raise an assumpsit'^. 
 
 The counsel for the plaintiff's were Mr. Attorney General, Mr. Walker 
 and Mr. Dunning. They denied this to be a past consideration ; and 
 insisted, that the liberty given to the plaintiff's, to draw upon a confirmed 
 house in London, (which was prior to the undertaking by the defendants,) 
 was the consideration of the credit given by the plaintiff's to White's 
 draughts ; and that this was a good and sufficient consideration for the 
 undertaking made by the defendants. It relates back to the original 
 transaction. If any one promises to pay for goods delivered to a third 
 person ; such promise, being in writing, is a good one. And here White 
 had had 8001. from the plaintiffs, upon this assurance : and the defendants 
 undertake in writing, in pursuance and completion of this original as- 
 surance, to be answerable for White's reimbursing the plaintiffs. And a 
 promise in writing is out of the statute. 
 
 ' Dated 16th Feb. 1762. = Dated 19th March, 17C2. 
 
 " See likewise Hardres, 72, 73, 74. 
 
 I
 
 SECT. Il] IMLI.ANS V. VAN MIERdP. 271 
 
 Tliis case does not fall within those that have Ijeen citeil : for Van 
 Mierop and Hopkins have made themselves originally liable. An ex jkixI. 
 facto event cannot alter the nature of an original promise. Their 
 original promise made them liable, and bound them. And they arc 
 obliged, both by law, and in honour and honesty, to perform it. It is a 
 mercantile transaction : and it must be considered, upon the whole of it, 
 as an admittance that the defendants either had or soon would have eii'ects 
 of White's in their hands. 
 
 Lord Mansfield. The olijection is, that the letter whereby Van 
 Mierop and Hopkins undertake to honour the plaintiff's bills, is niidinn 
 2)aclmn. The other side deny it. This is the only question, here. 
 
 But this is quite different from what passed at the trial : the nmJuin 
 pactum was not mentioned at that time. The grounds it was argued upon 
 there, were : 1st, that this imported to be a credit given to Pillans and 
 Rose, in prospect of a future credit to be given by them to White ; and 
 that this credit might well be countermanded before the advancement of 
 any money : and this is so. 2dly, that there was a fraud : for that Van 
 Mierop and Hopkins had reason to think that White had sent goods to 
 Pillans and Rose ; whereas, this was a mere lending of credit. 3dly, tliat 
 if Pillans and Rose had received goods from White, and retained them till 
 he failed, the defendant's undertaking was revocable. 
 
 I was then of opinion, that Van Mierop and Hopkins were bound by 
 their letter ; unless there was some fraud upon them : for that they had 
 engaged under their hands, in a mercantile transaction, to give credit for 
 Pillans and Rose's reimbui'sement. And I did not see it to be future, as 
 had been objected : nor did I see any fraud. And nothing was then 
 urged about its being nudum paciwn. I have no idea, that promises 
 for the debt of another, are applicable to the present case. This is, 
 as Mr Walker said, a mercantile transaction ; and it depends upon these 
 letters from merchant to merchant about lionouring bills, to such an 
 amount : and this credit is given upon a supposition that the person who 
 is to draw upon the undertakers within a certain time, has goods in liis 
 hands, or will have them. Here, Pillans and Rose trusted to this 
 undertaking : and there is no fraud. Therefore it is quite upon another 
 foundation than that of a naked promise from one, to pay the dcljt of 
 another. 
 
 Mr. Justice Wilmot. I own, the want of consideration, at first, 
 occurred to me. But I now am satisfied, tiiat this case has nothing to do 
 with the cases of undertakings by one to pay the debt of another. In 
 those cases, it is settled, that where the consideration is past, the action 
 will not lie : and yet this seems a hard case. The mere promise to pay 
 the debt of another, without any consideration at all, is nudum pactum. : 
 but the least spark of a consideration will be sufficient. It seems almost 
 implied, that there must be some consideration : but if there be none
 
 272 IMI-LAXS ('. VAN MIEROP. [CHAP. Ill 
 
 ;it all, it is nndinn paHnm. The statute must mean sucli a special 
 promise as would have supiwrted an action. But all this is out of 
 tiic present case. So also, I think, is all the precedent correspondence. 
 It lies in a narrow compass. White, Pillans and Rose, and Van Mierop 
 and Hopkins had all a correspondence together: they have intercourse 
 together, mutually in mercantile transactions. Pillans and Rose write 
 to Van Mierop and Hopkins, to know whether they will honour their 
 draughts for 800^. in about a month's time. They say, they will. 
 Now it strikes me, as Mr. Walker said, that it admits that they 
 either have assets or effects of White's in their hands, or that they 
 have credit upon him. Now by this undertaking of a good house in 
 London, and relying upon it, they are deluded and diverted from 
 using any legal diligence to pursue White, or even not to part with 
 any effects of his which they might have in their hands. Therefore 
 this seems to be an irrevocable undertaking by Van Mierop and Hopkins : 
 and they ought to be bound by it. Consequently, there ought to be 
 a new trial. 
 
 Lord M.^nsfield. A letter of credit may be given as well for 
 money already advanced, as for money to be advanced in future. Let 
 it be argued again the next term : and you shall have the opinion of 
 
 the whole court. 
 
 Ulterius Concilium. 
 
 Yesterday, this matter accordingly came on again ; and was argued 
 by Mr. Wallace, for the defendants ; and by the same counsel as argued 
 last term, for the plaintiffs. 
 
 The latter repeated and enforced their arguments. They said the 
 consideration moved from AVhite to the defendants ; not from the 
 plaintiffs Pillans and Rose, to the defendants : and as the defendants 
 have undertaken for White, they can't revoke or retract their engage- 
 ment. This case is not like the cases cited : some of which are strange 
 eases, and not founded on solid or sufficient reasons ; and in others 
 of tliem, there was no meritorious consideration at all. And Mr. Walker 
 cited Hardres, 71, Eeynolds v. Prosser ; where the consideration was 
 adjudged sufficient, notwithstanding all the reasoning of Sir Thomas 
 Hardres, and all the cases cited by him. That was an assumpsit by 
 a stranger, in consideration that the plaintiff would forbear to prosecute 
 Lord Abergavenny upon a judgment, in the name of the original 
 plaintiff, by virtue of a letter of attorney to receive it to his own use. 
 
 Serjeant Davij was heard, this morning, on behalf of the defendants ; 
 and urged, that the plaintiffs gave credit to White, upon his promising 
 to reimburse them : and he said, there was a fraudulent concealment 
 of facts. White's first letter could have no influence on the plaintiffs. 
 For they afterwards de.sired a confirmed credit upon a house of rank 
 in London : so that they did not rely on Wliite's first letter which
 
 SECT. II] PILLANS V. VAN MIEROP. 273 
 
 offered credit on the defendants, or any other method of reimbursement. 
 And nothing liad then passed between Wliite and tlie defendants. For 
 the first letter between them was on the IGth of Fel)ruary (a fortnight 
 after) : and then the defendants were deceived into a false opinion that 
 it was for a future credit, and not to secure a past acceptance of 
 Wliite's bills by the plaintiffs. And this concealment of circumstances 
 is sufficient to vitiate the contract. The plaintiffs had accepted a bill 
 of 800/. of White's, a fortnight before the defendant's letter of 16th 
 February : which bill the plaintiffs had accepted upon assurance of 
 credit on a house in London, to reimburse them. And this transaction 
 was fraudulently concealed, both by White and the plaintiffs, from tlie 
 defendants. If this had been disclosed, the defendants would have 
 plainly seen that the plaintiffs doubted of White's suiiiciency ; by their 
 requiring further security for his already contracted debt. All letters 
 of credit relate to future credit ; not to debts before incurred : nor can 
 the advancer of money thereupon, include an old debt before incurred. 
 A bill cannot be accepted before it is drawn. This is only a promise 
 to accept : for it is only a promise to honour the bill ; not a promise 
 to pay it. A promise to pay a past debt of another person is void 
 at common law, for want of consideration ; unless there be at least 
 an implied promise from the debtee to forbear suing the original debtor. 
 But here was a debt clearly contracted by White with the plaintiffs 
 on the credit of White : and there is no promise from the plaintiffs 
 to forbear suing White. A naked promise is a void promise : the 
 consideration must be executory, not past or executed. 
 
 Lord Mansfield asked, if any case could be found, where the under- 
 taking holden to be a nudum pactum was in writing. 
 
 Serjeant Davy. It was antiently doubted whetlier a written accept- 
 ance of a bill of exchange was binding, for want of a consideration. 
 It is so said, somewhere in Lutwyche. 
 
 Lord Mansfield. This is a matter of great consequence to trade 
 and commerce, in every light. If there was any kind of fraud in this 
 transaction, the collusion and mala fides would have vacated the contract. 
 But from these letters, it seems to me clear, that there was none. The 
 first proposal from White, was to reimburse the plaintiffs by a remittance, 
 or by credit on the house of Van Mierop : this was the alternative 
 he proposed. The plaintiffs chose the latter. Both the plaintifls and 
 White wrote to Van Mierop and company. They answered that they 
 would honour the plaintiffs' draughts. So that the defendants assent 
 to the proposal made by White, and ratify it. And it does not seem 
 at all, that the plaintiffs then doubted of White's sufficiency, or meant 
 to conceal any thing from the defendants. If there be no fraud, it 
 is a mere question of law. The law of merchants, and the law of tlie 
 land, is the same : A witness can not be admitted, to piove the law 
 F. IS
 
 274 PILLANS V. VAN MIEROP. [CHAP. Ill 
 
 of merchants. We must consider it as a point of law. A nndnm pactum 
 does not exist, in tlie usage and law of merchants. 
 
 I take it, that the ancient notion about the want of consideration 
 was for the sake of evidence only : for when it is reduced into writing, 
 as in covenants, specialities, bonds, &c. ', there was no objection to the 
 want of consideration. And the statute of fi-auds proceeded upon the 
 same principle. In commercial cases amongst merchants, the want of 
 consideration is not an objection. 
 
 Tliis is just the same thing as if Wliite had drawn on Van Mierop 
 and Hopkins, payable to the plaintiffs : it had been notliing to the 
 plaintiff's, whether Van Mierop and Co. had effects of White's in their 
 liands, or not ; if they had accepted his bill. Aiid this amounts to 
 the same thing : — I will give the bill due honour, is, in effect, accepting it. 
 If a man agrees that he will do the formal part, the law looks upon it 
 (in the case of an acceptance of a bill) as if actually done. This is 
 an engagement to accept the bill, if there was a necessity to accept it ; 
 and to pay it, when due : and they could not afterwards retract. It 
 would be very destructive to trade, and to trust in commercial dealing, 
 if they could. There was nothing of nudum jmctum mentioned to the 
 jury ; nor was it, I dare say, at aU in their idea or contemplation. 
 I think the point of law is -with the plaintiffs. 
 
 Mr. Justice Wilmot. The question is, whether this action can be 
 supported, upon the breach of this agreement. I can find none of those 
 cases that go upon its being nudum pactum, that are in writing : they 
 are all upon parol. I have traced this matter of the nudum pactum : and 
 it is very curious. 
 
 He then explained the principle of an agreement being looked upon 
 as a nudum pactum ; and how the notion of a nudum pactum, first 
 came into our law. He said, it was echoed, from the civil law : Ex nudo 
 pacto non oritur actio. Vinnius gives the reason, in lilx 3, tit. Dc 
 OUigationihus, 4to. edition, 596. If by stipulation, (and a furtiori, if 
 by writing), it was good without consideration. There was no radical 
 defect in the contract, for want of consideration. But it was made 
 requisite, in order to put people upon attention and reflection, and to 
 prevent obscurity and uncertainty : and in that view, either writing or 
 certain formalities were required. Idem, on Justinian, 4to. edit., 614. 
 
 Therefore it was intended as a guard against rash, inconsiderate 
 declarations : but if an undertaking was entered into upon deliberation 
 and reflection, it had activity; and such promises were binding. Both 
 Grotius and Puffendorff, hold them obligatory by the law of nations. 
 Grot., lib. 2, c. 11, Be Promissis. Puflend., Kb. 3, c. 5. They are 
 morally good; and only require ascertainment. Therefore there is no 
 reason to extend the principle, or carry it further. 
 
 _ ' Vide 3 Burr. 1639. It is there said that "a man may without consiaeratiou enter 
 into an express covenant under hand and seal." En.
 
 SECT. Il] PILLANS I'. VAN MIEROP. 275 
 
 There would liave been no doubt upon the present case, according 
 to the Roman hxw ; because here is both stipulation (in the express 
 Roman form) and writing. Bracton (who wrote' temp. Hen. 3,) is the 
 first of our lawyers who mention this. His writings interweave a great 
 many things out of the Roman law. In his third book, cap. 1, De 
 Actionibus, he distinguishes between naked and clothed contracts. He 
 says that obligatio est mater actionis ; and that it may arise ex contractu, 
 multis mollis; sicut ex conventione, <£-c. ; sicut sunt pacta, conventa, qum 
 nuda sunt aliquando, aliquando vestita, <i'c., djc. 
 
 Our own lawyers have adopted exactly the same idea as the Roman 
 law. Plowden, 308. b. " in the case of Sheryyigton and Pledal v. Strotton 
 and others, mentions it : and no one contradicted it. He lays down 
 the distinction between contracts or agreements in words (which are 
 more base), and contracts or agreements in writing, (which are more 
 high); and puts the distinction upon the want of deliberation in the 
 former case, and the full exercise of it in the latter. His words are 
 the marrow of what the Roman lawjjers had said. Words pass from 
 men lightly : but where the agreement is made by deed, there is more 
 stay; &c., &c. For, first, there is, &c., &c.; and thirdly, he delivers 
 the writing as his deed, the delivery of the deed is a ceremony in law, 
 signifying fully his good will that tlie thing in the deed should pass 
 from him who made the deed, to the otlier. And therefore a deed, which 
 must necessarily be made upon great thought and deliberation^ shall bind, 
 without regard to the consideration. The voidness of the consideration 
 is the same, in reality, in both cases : the reason of adopting the rule 
 was the same, in both cases ; though there is a difference in the ceremonies 
 required by each law. But no ineflicacy arises merely from the naked 
 promise. Therefore, if it stood only upon the naked promise, its being, in 
 tliis case, reduced into writing, is a sufiicient guard against surprize : and 
 tlierefoi-e the rule of nudum pactum does not apply in the present 
 case. 
 
 I can not find, that a nudum pactum evidenced by writing has been 
 ever holden bad : and I sliould think it good ; though, where it is merely 
 verbal, it is bad. Yet I give no opinion upon its being good, always, 
 when in writing. Many of the old cases are strange and absurd : so also 
 are some of the modern ones ; particularly, that of Hayes v. Warren^. 
 It is now settled, that where the act is done at the request of the' person 
 promising, it ■will be a sufficient foundation to graft the promise upon. 
 In another instance, the strictness has been relaxed : As for instance, 
 
 1 Sub ultima tempora Eegis H. 3. 
 
 - This probably was Plowden's own argument. I suppose he was himself that 
 apprentice of the Middle Temple who argued for the defeudauts. 
 
 3 Vide 2 Sir J. S. 933. I have a very full note of this case. The reason of the 
 reversal of the judgment was, that it did not appear by the declaration to be either for 
 the benefit or at the request of the defendant. 
 
 IS— 2
 
 !70 
 
 PILLANS V. VAN MIEROP. [CHAP. Ill 
 
 burying' a son; or curing- a son; tlie considerations were botli past; 
 and yet holden good. It has been melting down into common sense, of 
 late times. 
 
 However, I do here see a consideration. If it be a departure from 
 any right, it will be sufficient to graft a verbal promise upon. Now here. 
 White, living in Ireland, writes to the plaintiffs to honour his draught for 
 800;.' payable ten weeks after. The plaintiffs agree to it, on condition 
 that they be made safe at all events. White offers good credit on a house 
 in Loudon ; and draws : and the plaintiffs accept his draught. Then 
 White wi-ites to them, to draw on Van Mierop and Hopkins : to whom 
 the plaintiffs write, to inquire if they will honour their draught: they 
 enwafe that they will. This transaction has prevented, stopped, and 
 disabled the plaintiffs from calling upon White, for the performance of his 
 eno-awement. For, White's engagement is complied with : so that the 
 plaintiffs could not call upon him for tliis security. I do not speak of the 
 money : for, that was not payable till after two usances and a half. But 
 the plaintiffs were prevented from calling upon White for a performance 
 of his engagement to give them credit on a good house in London, 
 for reimbursement : so that here is a good consideration. The law does 
 not weigh the quantum of the consideration. The suspension of the 
 plaintiff's right to call upon White for a compliance with his engagement 
 is sufficient to support an action ; even if it be a suspension of the right, 
 for a day only, or for ever so little a time. 
 
 But to consider this as a commercial case. All nations ought to have 
 their laws conformable to each other, in such cases. Fides servanda est : 
 simplicitas juris gentium jM'tevaleat. Hodierni mores are such, that the old 
 notion about the nudum pactum is not strictly observed, as a rule. On a 
 question of this nature, whether by the law of nations, such an engage- 
 ment as this shall bind, the law is to judge. 
 
 The true reason why the acceptance of a bill of exchange shall bind, is 
 not on account of the acceptor's having, or being supposed to have, effects 
 in hand ; but for the convenience of trade and commerce. Fides est 
 servanda. An acceptance for the honour of the drawer, shall bind 
 the acceptor : so shall a verbal acceptance. And whether this be an 
 actual acceptance, or an agreement to accept, it ought equally to bind. 
 An agreement to accept a bill to be drawn in future would (as it seems to 
 me) by connection and relation, bind, on account of the antecedent 
 relation. And I see no difference between its being before or after 
 the bill was dra^vn. Here was an agreement sufficient to bind the 
 defendants to pay the bill : agreeing to honour it is agreeing to pay it. I 
 see no sort of fraud. It rather seems as if the defendants had effects 
 of White's in their hands. And it does not appear to me, that the 
 
 1 Church and Chm-ch's Case, cited in Eaym. 260. 
 
 ■ Vide 2 Leon. HI. 
 
 ^ For between Ireland and Holland each usance is one month.
 
 SECT. Il] PILLANS V. VAN MIEROP. 277 
 
 defendants would not liave lionoured the plaintitls' di'auglits, evot\ though 
 they liad known that it was future credit. But wliether the plaintitls or 
 the defendants had effects of Wliite's in their liands, or not ; we must 
 determine on the general doctrine. And I am of opinion, that there 
 ought to be a new trial. 
 
 Mr. Justice Yates was of the same opinion. He said it was a case of 
 great consequence to commerce : and therefore he would give both his 
 opinion and his reasons. The arguments on the side of the defendants 
 terminate in its being a nudum pactum, and therefore void. This depends 
 upon two questions. 1st question, — whether this be a promise without 
 a consideration ; 2d question, — if it is, then wliether this promise shall not 
 be binding, of itself, ^vithout any consideration. 
 
 First, — the draught drawn by White on the plaintiffs, payable to 
 Clifford, is no part of the consideration of the undertaking by the 
 defendants. The draught payable to Clifford is never mentioned to the 
 defendants. They are asked whether they will answer a draught from the 
 plaintifTs upon them : they answer they will honour such a draught on 
 them. Whether the defendants had or had not effects of Wliite's in their 
 hands, is immaterial. Any damage' to another, or suspension or for- 
 bearance of his right, is a foundation for an undertaking, and will 
 make it binding, though no actual benefit accrues to the party under- 
 taking. Now here the promise and undertaking of the defendants did 
 occasion a possibility of loss to the plaintiffs. It is plain that the 
 plaintiffs would not rely on White's assurance only, but wrote to the 
 defendants to know if they would accept their draughts. The credit of 
 the plaintiffs might have been hurt by the refusal of the defendants 
 to accept White's bills. They were, or might have been, prevented from 
 resorting to him, or getting further security from him. It comes within 
 the cases of promises where the debtee forbears suing the original debtor. 
 
 Second question, — Whether, by the law of merchants, this contract 
 is not bincHng on the defendants, though it was without consideration. 
 The acceptance of a bill of exchange is an obligation to pay it. The 
 end of their institution, their currency, requires that it should be so. 
 On this principle, bills of exchange are considered and are declared 
 upon as special contracts, though legally they are only simple contracts. 
 The declaration sets forth the bill and acceptance specifically, and 
 that thereby the defendants, by the custom of merchants, became 
 liable to pay it. This agreement to honour their bill was a virtual 
 acceptance of the biU. An acceptance needs not be upon the bill 
 itself : it may be by collateral writing. Wilkinson v. Lutividge, 1 
 Strange, 648. A promise to accept is the same as an actual accept- 
 ance, and a small matter amounts to an acceptance ; and so says 
 Molloy, lib. 2, c. 10, § 20. And an acceptance will bind, though the 
 
 ' Vide Co(jgs V. Bernard, 2 Lord Kaym. 919.
 
 278 PILLANS V. VAN MIEROP. [CHAP. Ill 
 
 acceptor has no effects of the drawer in his hands, and witliout any 
 consideration. Symons v. Parminter^, Hil. 1747, 21 G. 2, B. R. And 
 a bill accepted for the honour of the drawer will also bind. 
 
 Then he applied these po.sitions to the present case. It was an 
 acceptance of this very draught by relation and connection, though the 
 bill was not then drawn by the plaintiffs on the defendants. But even 
 if it did not amount to an actual acceptance, yet it would equally bind 
 the defendants : they would be equally obliged to perform the effect 
 of their undertaking. The plaintiffs apprised the defendants of their 
 intention to draw, and the defendants promised to honour their draught ; 
 and the plaintiffs of course would regulate their conduct accordingly. 
 Therefore, upon the whole circumstances of this transaction : 1st, There 
 is a consideration ; and, 2d, If there was none, yet in this commercial case 
 the defendants would be bound. 
 
 Mr. Justice Aston. I am of opinion that there ouglit to be a new 
 trial. If there be such a custom of merchants as has been alleged, it 
 may be found by a jury ; but it is the court, not the jury, who are to 
 determine the law. This must be considered as a commercial transaction, 
 and is a plain case. The defendants have undertaken to honour the 
 plaintiffs' draught ; therefore they are bound to pay it. This cannot 
 be called a nndxmi pactMm. The answer returned by the defendants 
 is an admission of having effects of White's in their hands, if that 
 were necessary. Ajid after this promise to accept (which is an implied 
 acceptance), they might have applied any thing of Wliite's that they 
 had in their hands to this engagement, even though White had drawn 
 other bills upon them in the interim. The defendants voluntarily 
 engaged to the plaintiffs, and they could not recede from their engage- 
 ment. As to its being a nudum factum (which matter has been already 
 so well explained), if there be turpitude or illegality in the consideration 
 of a note, it will make it void, and may be given in evidence. But 
 here nothing of that kind appears, nor any thing like fraud in the 
 plaintiffs. Here was full notice of all the facts ; a clear apprehension 
 of them by the defendants ; a question put to them, whether they would 
 accept; and their answer, that they would. Upon the whole he con- 
 curred, that an action vrill lay for the plaintiffs against them ; and 
 that the plaintiffs ought to recover. 
 
 By tue Court unanimously the rule to set aside the verdict, and for a 
 new trial, was made absolute. 
 
 ' This was on a motion in arrest of judgment. The judgment was affirmed (ex 
 I'tirte) in Dom. Proo. with £100 costs, upon or soon after 20th Feb. 1748.
 
 SECT. Il] RANN I'. HUGHES. 279 
 
 PiANN AND Another, Executors of Mary Hugues, v. ISABELLA 
 HUGHES, Administratrix of J. Hughes. 
 
 In the House of Lords, May 14, 1778. 
 
 [Reported in 7 Term Reports, 350, note {a).] 
 
 The declaration stated that on tlie 11th of June, 17G4, divers disputes 
 had arisen between the plaintifT's testator and the defendant's intestate, 
 wliicli they referred to arbitration ; that the arbitrator awarded that the 
 defendant's intestate should pay to the plaintifl"'s testator 983Z. ; tliat the 
 defendant's intestate afterwards died possessed of effects sufficient to pay 
 tliat sum ; that administration was granted to the defendant ; that Mary 
 Huglies died, liaving ajipointed the plaintifls lier executors ; that at tlie 
 time of her deatli, the said sum of 983^. was unpaid : by reason of wliich 
 premises the defendant, as administratrix, became liable to pay to the 
 plaintiffs, as executors, the said sum ; and being so liable, she, in con- 
 sideration thereof, undertook and promised to pay, &c. Tlie defendant 
 pleaded non assumpsit, j>lene administravif, and plene administravit except 
 as to certain goods, &c., which were not sufficient to pay an outstanding 
 bond-debt of the intestate's therein set forth, &c. The replication took 
 issue on these pleas. Verdict for the plaintiff on the first issue, and for 
 the defendant on the two last ; and on the first a general judgment was 
 entered in B. R. against the defendant de bonis propriis. This judgment 
 was reversed in the Exchequer Chamber ; and a writ of error was 
 afterwards brought in the House of Lords, where, after argument, the 
 following question was proposed to the judges by the Lord Chancellor ; 
 Whether sufficient matter appeared upon the declaration to warrant after 
 verdict the judgment against the defendant in error in her personal 
 capacity ; upon which the Lord Chief Baron Skynner delivered the 
 opinion of the judges to this effect : It is undoubtedly true that every 
 man is, by the law of nature, bound to fulfil his engagements. It is 
 equally true that the law of this country supplies no means, nor affords 
 any remedy, to compel the performance of an agreement made without 
 sufficient consideration. Such agreement is nudum pactum, ex quo non 
 oritur actio ; and whatsoever may be the sense of this maxim in the civil 
 law, it is in the last-mentioned sense only that it is to be understood in 
 our law. The declaration states that the defendant, being indebted as 
 administratrix, promised to pay when requested ; and the judgment is 
 against the defendant generally. The being indebted is of itself a 
 sufficient consideration to ground a promise ; but the promise must be 
 coexten.sive with the consideration, unless some particular consideration 
 of fact can be found here to warrant the extension of it against the 
 defendant in her own capacity. If a person indebted in one right, in 
 consideration of forbearance for a particular time, promise to pay in 
 another right, this convenience will be a sufficient consideration to
 
 2S0 RANN V. HUGHES. [CHAP. Ill 
 
 warrant an action against liiiii or licr in the latter riglit; but here no 
 sutticiont consideration occurs to support this demand against lier in 
 her personal capacity, for slie derives no advantage or convenience 
 from the promise liere made. For if I promise generally to pay upon 
 request what I was liable to pay upon request in another right, I derive 
 no advantage or convenience from this promise, and therefore there is 
 not sufficient consideration for it. But it is said that if this promise 
 is in writing, that takes away the necessity of a consideration, and 
 obviates the objection of nudum pactum, for that cannot be where 
 the promise is put in writing ; and tliat, if it were necessary to support 
 the promise that it should be in writing, it will, after verdict, be 
 presumed that it was in writing ; and this last is certainly true ; but 
 that there cannot be nudum pactum in writing, whatever may be the 
 rule ofjthe civil law, there is certainly none such in the law of England. 
 His Lordsliip observed, upon the doctrine of nudum pactum delivered 
 by Mr J. Wilmot in the case of Fillans v. Van Mierop and Hopkins, 
 3 Burr. 1663, that he contradicted himself, and was also contradicted by 
 Vinnius in his comment on Justinian. 
 
 All contracts are by the laws of England distinguished into agreements 
 by speciality, and agreements by parol ; nor is there any sucli third class, 
 as some of the counsel have endeavoured to maintain, as contracts in 
 writing. If they be merely written and not specialities, they are parol, 
 and a consideration must be proved. But it is said that the Statute 
 of Frauds has taken away the necessity of any consideration in tliis case : 
 the Statute of Frauds was made for the relief of personal representatives 
 and others, and did not intend to charge them further than by common 
 law they were chargeable. His Lordship here read those sections of that 
 statute which relate to the present subject. He observed that the words 
 were merely negative, and that executors and administrators should not 
 be liable out of their own estates, unless the agreement upon which 
 the action was brought, or some memorandum thereof, was in writing 
 and signed by the party. But this does not prove that the agreement was 
 still not liable to be tried and judged of as all other agreements merely in 
 writing are by the common law, and does not prove the converse of the 
 proposition, that when in writing the party must be at all events liable. 
 He here observed upon the case of Fillans v. Van Mierop, in Burr., and 
 the case of Losh v. Williamson, Mich. 16 G. 3, in B. R. ; and so far as 
 these cases went on the doctrine of nudum, pactum,, he seemed to intimate 
 that they were erroneous. He said that all his brothers concurred witli 
 him that in this case there was not a sufficient consideration to support 
 this demand as a personal demand against the defendant, and that its 
 being now supposed to have been in writing makes no difference. The 
 consequence of which is that the question put to us must be answered in 
 the negative. 
 
 And the judgment in tlie Exclicquer Cluimber was affirmed.
 
 SECT. Ill] STURLYN V. ALBANY. 281 
 
 SECTION III. 
 
 ADEQUACY OF CONSIDERATION. 
 
 SIR ANTHONY STURLYN v. ALBANY. 
 
 In the Queen's Bench Michaelmas Term, 1587. 
 
 [Reported in Croke Elizabeth, 67.] 
 
 Assumpsit. The case was, the plaintiff had made a lease to J. S. of 
 land for life, rendering rent. J. S. grants all Ids estate to the defend- 
 ant ; tlie rent was behind for divers years ; the plaintiff demands tlie 
 rent of the defendant, who assumed that if the plaintiff could shew to 
 him a deed that the rent was due, that he would pay to liim tlie rent 
 and the arrearages ; the plaintiff allegeth that upon such a day of, &c., 
 at Warwck, he shewed unto him the indenture of lease by which the 
 rent was due, and notwithstanding he had not paid him the rent and 
 the arrearages due for four years. Upon non assumpsit pleaded, it was 
 found for the plaintiff, and damages assessed to so much as the rent 
 and arrearages did amount unto. And it was moved in arrest of judg- 
 ment, that there was no consideration to ground an action ; for it is but 
 the shewing of the deed, which is no consideration. 2. The damages 
 ouglit only to be assessed as for tlie time the rent was behind, and not 
 for the rent and the arrearages ; for he hath other remedy for the 
 rent ; and a recovery in this action shall be no bar in another action. 
 But it was adjudged for the plaintiff: for when a thing is to be done 
 by the plaintiff, be it never so small, this is a sufficient consideration 
 to ground an action ; and here the shewing of the deed is a cause to 
 avoid suit ; and the rent and arrearages may be assessed all in damages. 
 But they took oi-der that the plaintiff should release to the defendant all 
 the arrearages of rent before execution should be awarded. 
 
 Nota. In this case it was alleged that it hath been adjudged, when 
 one assumeth to another, that if he can shew him an obligation in which 
 he was bound to Iiim, that he would pay him, and he did shew the 
 obligation, ifec, that no action lieth upon this assumpsit ; which was 
 affirmed by the justices.
 
 282 BRET V. J. S. AND WIFE. [CHAP. Ill 
 
 BRET V. J. S. AND Wife. 
 In the Common Pleas, Easter Term, IGOO. 
 
 [Reported in Croke FAizaheth, 75C.] 
 
 Assumpsit. Tlie case was, that William Dracot, first Imsband to 
 the feme, sent his son to tabic witli the plaintiff for three years, and 
 agreed to give unto him for every year 8^., and died within the year. 
 The feme, during her widowhood, in consideration of her natural affec- 
 tion to the son, and in consideration that the son should continue during 
 the residue of the time with the plaintiff, promised to the plaintiff to pay 
 unto him 6^. 13s. Ad. for the tabling of the son for the time past, and 8^. 
 for every year after that he should continue there with the plaintiff. 
 Afterwards sHe married the defendant, and the plaintiff brought his action 
 as well for tlie 6/. Vis. 4d. as for the tabling for the two years following, 
 
 Warhurton moved, that this action lay not. First, because it was 
 an entire contract by her first Imsband for the entire year, which 
 cannot be apportioned. Secondly, because natural affection is not 
 sufficient to ground an assumpsit without quid jjro quo. Thirdly, that 
 this is a contract for which action of debt lies, and not this action. 
 
 But all the Court held, that it well lay. For as to the first, it is well 
 apportionable ; because, it being for tabling which he had taken, there 
 ought to be a recompense, although he departed within the year, or that 
 the contractor died within the year. To the second, they agreed that 
 natural affection of itself is not a sufficient consideration to ground an 
 assumpsit ; for although it be sufficient to raise a use, yet it is not 
 sufficient to ground an action, without an express quid pro quo. But it is 
 here good, because it is not only in consideration of affection, but that her 
 son should afterwards continue at his table, which is good as well for the 
 money due before, as for what should afterwards become due. And as to 
 the third, true it is that, if the contract had been only for the tabling 
 afterwards, then debt would have lain, and not this action ; but in regard 
 it is conjoined with another thing for which he could not have an action 
 of debt (as it is here for this 6^. 13s. 4d.), an action upon the case lies for 
 all (as debt with other things may be put into an arbitrament). Where- 
 fore it was adjudged for the plaintiff.
 
 I 
 
 SECT.. Ill] BAINBRIDGE V. FIRMSTONE. 283 
 
 BAINBRIDGE v. FIRMSTONE. 
 In the Queen's Bench, November 2, 1838. 
 
 [Reported in 8 Adolphus <C Ellis, 743.] 
 
 Assumpsit. The declaration stated that, whereas lieretofore, to wit 
 &.C., in consideration that plaintiff, at the request of defendant, had then 
 consented to allow defendant to weigh divers, to wit two, boilers of the 
 plaintiff, of great value (fcc, defendant promised that he would, within a 
 reasonable time after the said weighing was effected, leave and give up the 
 boilers in as perfect and complete a condition, and as tit for use by plain- 
 tiff, as the same were in at the time of the consent so given by plaintiff; 
 and that, although in pursuance of the consent so given, defendant, to wit 
 on <tc., did weigh the same boilers, yet defendant did not nor would, 
 within a reasonable time after the said weighing was effected, leave and 
 give up the boilers in as perfect &c., but wholly neglected and refused so 
 to do, although a reasonable time for that purpose had elapsed before the 
 commencement of this suit ; and, on the contrary thereof, defendant after- 
 wards, to wit on &c., took the said boilers to pieces, and did not put the 
 same together again, but left the same in a detached and divided condition, 
 and in many different pieces, whereby plaintiff hath been put to great 
 trouble &c. Plea, Non assumpsit. 
 
 On the trial before Lord Denman, C..J., at the London sittings after 
 last Trinity term, a verdict was found for the defendant. 
 
 John Bayleij now moved in arrest of judgment. The declaration shews 
 no consideration. There should have been either detriment to the plain- 
 tiff, or benefit to the defendant; 1 Selwyn's N.P. 4.5'. It does not 
 appear that the defendant was to receive any remuneration. Besides, the 
 word " weigh " is ambiguous. 
 
 Lord Denman, G.J. It seems to me that the declaration is well enough. 
 The defendant had some reason for mshing to weigh the boilers ; and lie 
 could do so only by obtaining permission from the plaintiff, which he did 
 obtain by promising to return them in good condition. We need not 
 enquire what benefit he expected to derive. The plaintiff might have 
 given or refused leave. 
 
 Patteson, J. The consideration is, that the plaintiflf, at the defendant's 
 request, had consented to allow the defendant to weigh the boilers. I 
 suppose the defendant thought he had some benefit ; at any rate, there is 
 a detriment to the plaintiff from his parting with the possession for even 
 so short a time. 
 
 Williams and Coleridge, JJ. concurred. 
 
 Rule refused. 
 
 9lh ed.
 
 284 BOLTON V. MADDEN. [CHAP. Ill 
 
 BOLTON V. MADDEN. 
 In tue Queen's Bench, November 25, 1873. 
 
 [Reported in Law liejMrts, 9 Queen's Bench, 55.] 
 
 Declaration for money paid by the plaintiff for the defendant at his 
 request. Plea, never indebted. Issue tliereon. 
 
 At the ti-ial of tlie Lord Mayor's Court, before the Common Serjeant, 
 the judge ordered a nonsuit, with leave to tlie plaintiff to move to enter a 
 verdict for 71. 7s. 
 
 A rule was afterwards obtained accordingly on the ground that tlie 
 Common Serjeant had ruled that the facts proved constituted only an 
 imperfect obligation and did not amount to a legally Ijinding contract. 
 
 The facts of the case, the course of the trial, and the arguments suffi- 
 ciently appear in the judgment of the Court. 
 
 Nov. 20. Ternpleton shewed cause. 
 
 F. Turner in support of the rule. 
 
 The following cases were cited : Blachford v. Preston ' ; Haiyh v. 
 Brooks'; Baiahridge v. Firm-stone'; Shadwell v. Shadwell* ; Sterry v. 
 Clifton \ 
 
 Cur. adv. vult. 
 
 Nov. 2.5. The judgment of the Court (Blackburn, MeUor, and Quain, 
 JJ.) was delivered by 
 
 Blackburn, J. In this case, tried in the Lord Mayor's Court, the 
 plaintiff was nonsuited, but the jury, under the direction of the Common 
 Serjeant, assessed the damages at 71. 7s., and leave was given to the 
 plaintiff to move to enter a verdict for that amount ; the pleadings to be 
 amended if necessary. 
 
 From the notes, it appears that there was no dispute as to the facts. 
 The plaintiff and defendant were both subscribers to a charity, the objects 
 of which are elected by the subscribers who have votes proportioned in 
 numlier to the amount they have subscribed. The plaintiff and defendant 
 expressly agreed that if the plaintiff would give twenty-eight votes for an 
 object of the charity whom the defendant favoured, the defendant would 
 at the ne.xt election give twenty-eight votes for such object of the charity 
 as the plaintiff should then favour. The plaintiff performed his part 
 of this agreement, and voted for the candidate favoured by the defen- 
 dant ; but the defendant made default, and did not furnish any votes for 
 the candidate favoured Ijy the plaintiff at the next election. The plaintiff 
 in consequence sul)scribed 71. 7s. to the charity so as to obtain twenty- 
 eight more votes in his own right, which he used in lieu of those which 
 the defendant had promised to supply him. 
 
 '8T. R. 89. = lOAd. &E.309. » 8 Ad. & E. 743. 
 
 * 9 C. B. (n.s.) 159; 30 L. J. (C. P.) 115. = 9 C. B. 110.
 
 SECT. Ill] HAIGH V. BROOKS. 285 
 
 There can be no doubt that there was an express promise by tlie 
 defendant and a breacii of that promise ; but the douljt raised was, 
 whether the consideration was sucli as to make that promise enforce- 
 able at law. 
 
 The general rule is, that an executory agreement, by which the plain- 
 tift" agrees to do something on the terms tliat the defendant agrees to do 
 something else, may be enforced, if what the plaintiff has agreed to do is 
 " either for the benefit of the defendant or to the trouble or prejudice of 
 the plaintiff:" see Com. Dig. Action on the case in assumpsit, B. 1. If 
 it be either, the adequacy of the consideration is for the parties to consider 
 at the time of making the agreement, not for the Court when it is sought 
 to be enforced. 
 
 The argument for the defendant was that the subscriber to a charity is 
 under an obligation to give his votes for the best object, and that the 
 plaintiff, if he gave his votes at the first election to what he thought the 
 best candidate, incurred neither trouble nor prejudice, so that there was in 
 that point of view no consideration ; and if he gave his votes to the candi- 
 date whom he did not think the best, the whole agreement was void as 
 against public policy. 
 
 But though some of us, at least, much disapprove of this kind of 
 traffic, we can find no legal principle to justify us in holding that the 
 suliscriber to a charity may not give his votes as he pleases, answering 
 only to his own conscience and reputation for the way he exercises his 
 power. 
 
 We think, therefore, the nonsuit cannot be supported, and as there 
 was evidence justifying the jury in assessing the damages as they have 
 done, the rule must be made absolute to enter the verdict for the 
 plaintiff. 
 
 Eule absolute. 
 
 HAIGH AND ANOTHER v. BROOKS. 
 
 In the Queen's Bench, June 6, 1839. 
 
 BROOKS V. HAIGH AND ANOTHER. 
 
 In the Exchequer Chamber, June 29, 1840. 
 
 [Reported in 10 Adolphus d- Ellis, 309, 323.] 
 
 Assumpsit, The first count of the declaration stated that heretofore, 
 to wit on ifec, " in consideration that the said plaintiffs, at the special 
 instance and request of the said defendant, would give up to him a certain 
 guarantee of £10,000 on behalf of Messrs. John Lees and Sons, Manchester, 
 then held by the said plaintiffs, he the said defendant undertook, and
 
 286 HAIGH V. BROOKS. [CHAP. Ill 
 
 tlien faitlifully promised the said plaintiffs, to see certain bills, accepted 
 by tlie said Messrs. John Lees and Sons, paid at maturity ; that is to say, 
 a certain bill of exchange" bearing date etc., drawn by plaintiffs upon and 
 accepted Ijy tlie said Lees and Sons, payable three months after date, for 
 X346G 13.S-. 7il., and made payable at &c. : and also a certain other bill, 
 &c. : describing two other bills for £3000 and =£3200 drawn by plaintiffs 
 upon and accepted by Lees and Sons, and made payable at &c. : Averment, 
 that plaintifls, relying on defendant's said promise, did then to wit on (fee, 
 "give up to the said defendant the said guaranty of £10,000." Breach, 
 non-payment of the bills, when they afterwards came to maturity, by 
 Lees and Sons, or the parties at whose liouses the bills respectively were 
 made payable, or by defendant, or any other person, &c. 
 
 Tliird plea, to the first count : " That the said supposed guarantee of 
 £10,000, in consideration of the giving up whereof the defendant made 
 such supposed promise and undertaking as therein mentioned, and 
 which guaranty was so given up to the said defendant as therein mentioned, 
 was a special promise to answer the said plaintiffs for the debt and 
 default of other persons, to wit the said Messrs John Lees and Sons iu 
 the said first count mentioned ; and that no agreement in respect of, 
 or relating to, the said supposed guaranty or special promise, or any 
 memorandum or note thereof, wherein any sufficient consideration for the 
 said guaranty or special promise was stated or shewn, was in writing and 
 signed by the said defendant, or any other person by him tliereunto 
 lawfully authorized. And the said defendant further saith that the said 
 supposed guaranty, in consideration of the giving up whereof the 
 defendant made the said supposed promise and undertaking in the said 
 first count mentioned, and which was so given up as therein mentioned, 
 was and is contained in a certain memorandum in writing signed by the 
 defendant, and which was and is in the words and figures and to the 
 effect following, that is to say : 
 
 Manchester, 4th February, 1837. 
 Messrs. Haigii & Francevs. 
 
 Gent., — In consideration of your being in advance to Messrs. John Lees 
 and Sons, in the sum of £10,000 for the purchase of cotton, I do hereby 
 give you my guaranty for tiiat amount (say £10,000), on their behalf. 
 
 John Brooks. 
 
 And that there was no other agreement or memorandum or note 
 thereof, in respect of, or relating to, the said last-mentioned supposed 
 guaranty or special promise : wherefore the said defendant says that the 
 supposed guaranty, in consideration whereof the said defendant made the 
 said supposed promise and undertaking in the said first count mentioned, 
 ■was and is void and of no effect ; and therefore that the said sujiposed 
 promise and undertaking in the said first count mentioned was and is void 
 and of no effect." Verification.
 
 SECT. Ill] HAIGH V. BROOKS. 287 
 
 Demurrer, assigning for cause, " tluit it is admitted by the plea tliat 
 the memorandum, tlie giving up of which was the consideration of the 
 guaranty in tlie said declaration mentioned, was actually given up to the 
 said defendant by the said plaintifl's, and the consideration was therefore 
 executed by the said plaintifts, and that, even if the original memorandum 
 was not binding in point of law, the giving up was a sufficient consider- 
 ation for the promise in the declaration mentioned." Joinder. The 
 demurrer was argued in last Hilary term '. 
 
 Sir W. W. Follett for the plaintiffs. The undertaking declared upon is, 
 on the face of it, sufficient to satisfy the Statute of Frauds, 29 Car. 2, c. 
 3, § 4. It is said, however, that the consideration is really insufficient, 
 because the guarantee delivered up was one which could not have been 
 sued upon consistently with the statute. But, assuming that to be so, a 
 promise in consideration of delivering up such a guaranty might still be 
 good. The defendant might, for substantial reasons, wish to have tlie 
 guaranty back. His mercantile character was pledged by it. It might, 
 on various other accounts, be important to him that such a paper should not 
 remain in the plaintiff's hands ; and, if the bargain was made upon any 
 consideration, the Court will not inquire into its adequacy. This principle 
 was lately recognised in Hitchcock v. Goher^. Such a promise might 
 be made in consideration of delivering up a letter ; no one but the 
 defendant might be able to judge how far the possession of it was 
 valuable ; but, if the letter was given up at his request, the rule would 
 apply, that any thing so given, to the plaintiff's detriment, or the benefit 
 of the defendant, is consideration for an assumpsit. Suppose the under- 
 taking given up had been one rendered unavailing by the Statute of 
 Limitations, no action would have lain upon it, but the attempt to enforce 
 it could not perhaps have been resisted without injury to the defendant's 
 mercantile character ; the relinquishment of it, therefore, would have 
 been good consideration for a promise. The present is a similar case. 
 Release from a moral obligation is consideration enough for an express 
 promise. If it were necessary that something should be foregone to which 
 there was a legal right, the delivery of the mere written paper, which 
 contained the first guaranty, was sufficient in this case. The plaintiffs are 
 entitled to put some value on the possession of such a paper, though not 
 legally available ; as they might on the possession of a cancelled bond, or 
 bills accepted by the defendant on wrong stamps. It is not, indeed, clear 
 in this case that the first guaranty was void. In Boehm v. Campbell^ a 
 similar guaranty was held to shew a sufficient consideration, though the 
 advance for which the security was given had been already made, and it 
 did not appear more distinctly than in the present case that time was to 
 be granted. Supposing it even questionable whether the former under- 
 
 ' January 18th. Before Lord Denman, C. J. ; Littledale, Williams, and Coleridge, JJ. 
 2 6 A. & E. 438. And see Archer v. Marsh, G A. <Sr E. 959. 
 ^ 3 B. Moore, 1.5; s. c. 8 Taunt. C79.
 
 288 HAIGH V. BROOKS. [CHAP. Ill 
 
 Uking bound the defendant, yet the discharge from a claim, or waiver of 
 a defence, on winch tlie promisee might or might not have been legally 
 entitled to succeed, is consideration enough to support an assumpsit; 
 Lougridye v. Dorville\ Stracy v. The Bank of England'. Here, however, 
 it appears, at all events, that the original guaranty may have been given 
 under circumstances which rendered it morally binding ; and that brings 
 it within tlie principle of Lee v. Muggeridge^ and other cases in which 
 promises supported by moral obligation have been held sufficient. 
 
 Sir J. Campbell, Attorney General, contra. First, the original 
 guaranty was void ; and, if so, then, secondly, the promise declared upon 
 is without consideration. . . . Secondly, the guaranty being void, the 
 undertaking substituted for it, wthout any new consideration, is void 
 also. The case is no better than if a second guaranty had been given in 
 the words of the first. A consideration, to support a promise, must have 
 some value in point of law ; Smith and Smith's Case'', and other authorities 
 cited in note {!>) to Barber v. Fox^. Eann v. Hughes" illustrates the same 
 point. A man may have in his possession a letter of which improper use 
 might be made ; but his delivering it up is no legal consideration. An 
 unfounded action may create annoyance ; but the renouncing it is no 
 consideration in law for a promise. Where, indeed, there is a reasonable 
 doubt, in point of law, wliether the promisee would or would not succeed 
 if the litigation were prosecuted, the case is different : that was so in 
 Longridge v. Dort^ille and Stracy v. llie Bank of England. In Shortrede v. 
 Cheek^ the consideration disclosed was, that the plaintiff should withdraw 
 a promissory note, on which he had an unquestioned right of action : and 
 Parke J. said, " There is no doubt that the giving up of any note upon 
 wliich tlie plaintiff might have sued, would be a sufficient consideration." 
 It is argued that foregoing a security upon which the Statute of 
 Limitations had attached would be a consideration ; but there an action 
 would lie on the security if the statute were not pleaded. Whether the 
 giving up a bill drawn on a wrong stamp would be a consideration or not 
 may be questionable ; but the objection is not one of which the Court 
 would take judicial notice : here the Court must take notice that the 
 guaranty is invalid. It is contended here that the promise is binding, 
 because grounded on a moral obligation ; but that obligation rests on a 
 promise which is itself not binding ; the new engagement, then, cannot 
 have more force than the original one. In the cases where a moral 
 obligation has been held sufficient ground for an express promise, the 
 obligation has been something more than a nudtim pactum : thus, in 
 Lee V. Muggeridge money had been advanced by the plaintiff at the 
 request of the promisor. But the doctrine, that a moral obligation is 
 
 1 5 B. & Aid. 117. 2 6 Bing. 754. » 5 Taunt. 36. •> 3 Leon. 88. 
 
 <> 2 Wras. Saund. 137 e, 5th edit. See Jones v. Waite, 5 New Ca. 341. 
 
 " Note (a) to MitcUnson v. Hewson, 7 T. R. 330. 
 
 ' 1 A. & E. 57. See Wilkinson v. B'jers, 1 A. ct E. 106.
 
 SECT. Ill] HAIGH V. BROOKS. 28D 
 
 sufficient consideration for a subsequent promise, is not free from doubt. 
 Lord Tenterden said, in Littlfjield v. Shee^, that it must be "received with 
 some limitation." The instances which have been considered as establish- 
 ing that doctrine are brought together in note {a) to Wennall v. Adney% 
 and seem to resolve tliemselves into tliese classes. First, where there lias 
 been a legal obligation antecedent to tlie promise ; as the duty of overseers 
 to provide for the poor. Secondly, where there was an antecedent equit- 
 able liability, as that of an executor to pay legacies ; but the doctrine, as 
 applicable to these cases, appears to have been overruled. Thirdly, 
 where a debt existed before the promise, but the remedy was barred 
 by statute ; as in the cases of certificated bankrupts or discharged 
 insolvents ; or where the Statute of Limitations has attached : in 
 these instances the party indebted may waive the statutory bar and 
 oblige himself, by a promise, to pay the debt. Fourthly, where a 
 promise merely voidable has been ratified ; as in the case of a person of 
 full age promising to pay a debt contracted during his infancy^. In all 
 these cases, so far as the doctrine is established, there has been an actual 
 benefit received, or a debt, or other ground of legal obligation, antecedent 
 to the promise relied upon : not merely a nudum pactum, as in the present 
 instance, where the party originally promising had received no benefit, 
 nor had the plaintiffs incurred any loss or prejudice at his request. The 
 money had been advanced when the guaranty was given ; then the 
 defendant says, " Forego the guaranty, and I will see you paid." The 
 prior moral obligation was only that which every man is under to keep 
 his word. iVas/t v. Brown*, Holliday v. Atkinson'', and Bret v. J. S. and 
 his wife^ cited in note (6) to Barher v. Fox, all shew that moral 
 considerations, where no actual benefit has been received by one party, or 
 prejudice sustained by the other, and no legal duty has attached, are not 
 sufficient ground for an assumpsit. As to the delivery, in this case, of the 
 mere paper, it is not pretended that the paper had any value : the 
 contract of guaranty, not the paper containing it, was the object really in 
 question. 
 
 Sir W. W. FollM in reply. ... If it was only doubtful whether such 
 a guaranty was not available, the giving it up was a good consideration. 
 If the invalidity of it was not a point as clear as that the eldest son 
 inherits, the Court will not measure the degree of doubt. It has scarcely 
 been disputed that the giving up of bills drawn on wrong stamps, or 
 a contract on which the Statute of Limitations had attaclied, would be 
 sufficient consideration : but those cases do not essentially difler from the 
 present. The bills are void from the first, and cannot be made valid ; 
 though the promisor may have good reason for wishing to get them into 
 
 > 2 B. & Ad. 811. = 3 Bos. & P. 249. 
 
 3 See Meijer v. Haworth, 8 A. & E. 467. 
 
 * Chitty on Bills, 74, note (x), 9th edit. (1840), by Cbitty & Hulme. 
 
 5 5 B. & C. 501. « Cro. Eliz. 756. 
 
 F. 19
 
 290 IIAKill V. BUOOKS. [CHAP. Ill 
 
 his possession. It is suggested that the bar created by the Statute of 
 Limitations may be waived ; but so also may that under the Statute of 
 Frauds. It is cU'ar that, to support a promise of this kind, there need 
 not have been an original liability in the promisor ; for that is not so in 
 the case of the bills, or in that of the contract made during infancy. That 
 a promise may be founded on sufficient consideration, though no benefit 
 has accrued to the promisor, appears from Stevens v. Li/nch\ where the 
 drawer of a bill, knowing that time had been given to the acceptor, under- 
 took to pay on the acceptors default, and an action was held maintain- 
 able on tiiat undertaking. But, supposing the guaranty in this case to 
 have been totally void, the giving up of a paper on which no action would 
 lie may be sufficient consideration for a promise. Here the plaintifis, 
 tliough not entitled to recover on the guaranty, might have brought trover 
 for tlie document if unlawfully taken out of their hands. In considering 
 whetlier or not such an action would lie, the value would be of no 
 importance ; it is enough for the present argument, if the plaintiffs could 
 have recovered a shilling. Suppose the defendant had said, " If you 
 will not bring trovei', I will pay the bills;" an action would clearly have 
 lain on such an agreement, and tlie case would not have differed from the 
 present. The consideration here is, not the releasing of an action on the 
 guaranty, but the giving it up ; whatever its value may have been, the 
 bargain is binding. [Coleridge, J. It is decided in Seoii v. Jones^ that 
 trover lies for an unstamped document if it is capable of being made good 
 by stamping.] Any paper may be the subject of an action of trover. 
 
 Cur. adv. mdt. 
 
 Lord Denman, C. J., in this term (June Gth), delivered the judgment 
 of tlie Court. 
 
 This action was brought upon an assumpsit to see certain acceptances 
 paid, in consideration of the plaintifis giving up a guaranty of ,£10,000 
 due from the acceptor to the plaintifis. Plea, that the guaranty was for 
 the debt of another, and that there was no writing wherein the considera- 
 tion appeared, signed by the defendant, and so the giving it up was no 
 good consideration for the promise. Demurrer, stating for cause that the 
 plea is bad, because the consideration was executed, whether the 
 guaranty were binding in law or not. The form of the guaranty was set 
 out in the plea. " In consideration of your being in advance to Messrs. 
 Jolni Lees and Sons, in the sum of £10,000 for the purchase of cotton, I 
 do hereby give you my guaranty for tliat amount (say £10,000), on their 
 behalf. John Brooks." 
 
 It was argued for the defendant tliat this guaranty is of no force, 
 because the fact of the plaintifis being already in advance to Lees could 
 form no consideration for the defendant's promise to guai-antee to the 
 plaintiffs the payment of Lee's acceptances. In the first place, this is by 
 
 1 12 East. 38. - i Taunt. 805.
 
 SECT. Ill] BROOKS V. HAIGH. 2!)1 
 
 no means clear. That " being in advance " must necessarily mean to 
 assert that he was in advance at the time of giving the guaranty, is an 
 assei'tion open to argument. It may possibly have been intended as 
 prospective. If the phrase had been "in consideration of your hecomiiKj 
 in advance," or "on condition of your being in advance," such would have 
 been the clear import'. As it is, nobody can doubt that the defendant 
 took a great interest in the affairs of Messrs. Lees, or believe that the 
 plaintiffs had not come under the advance mentioned at the defendant's 
 request. Here is then sufficient doubt to make it worth the defendant's 
 while to possess himself of the guaranty; and, if tliat be so, we liave no 
 concern with the adequacy or inadequacy of the price paid or promised 
 for it. 
 
 But we are by no means prepared to say that any circumstances short 
 of the imputation of fraud in fact could entitle us to hold tliat a party was 
 not bound by a promise made upon any consideration which could be 
 valuable ; while of its being so the promise by which it was obtained from 
 the holder of it must always afford some proof. 
 
 Here, wliether or not the guaranty could have been available within 
 the doctrine of Wain v. War/ters', the plaintiffs were induced by the 
 defendant's promise to part with something which they might have kept, 
 and the defendant obtained what he desired by means of that promise. 
 Both being free and able to judge for themselves, how can the defendant 
 be justified in breaking this promise, by discovering afterwards that the 
 thing in consideration of which he gave it did not possess that value which 
 he supposed to belong to it 1 It cannot be ascertained that that value was 
 what he most regarded. He may have had other objects and motives ; 
 and of their weight he was the only judge. We therefore think the plea 
 bad : and the demurrer must prevail. 
 
 Judgment for the plaintiffs. 
 
 The plaintiffs having signed judgment, error was brought in the 
 Exchequer Chamber. 
 
 The writ of error set out the pleadings, of which the material part 
 is stated in the preceding report. The errors assigned were, that the 
 declaration is insufficient, and that tlie judgment was for the plaintiffs 
 below, whereas it ought to liave been for the defendant. The writ of 
 error was argued in Trinity vacation, June 22d, 1840, before Lord 
 Abinger, C. B., Bosanquet, Coltman and Maule, JJ., and Alderson 
 and RoLFE, BB. 
 
 Sir J. Campbell, Attorney-General, for the plaintiff in error. . . . 
 No action would have lain on this guaranty ; and if so, is the giving it 
 up sufficient consideration for a new promise % Such an act is no con- 
 sideration, unless the thing given up be of some merchantable value. 
 
 ' See tlie discussion on the words "for giving his vote," in Lord Iluntingtou-er v. 
 Gardiner, 1 B. & C. 297. - .5 East. 10. 
 
 19—2
 
 292 BROOKS )'. JIAIfiH. [chap. Ill 
 
 Thus in Com. Dig., Action upon the Case upon Assumpsit (F. 8), (cited 
 by Holroyd, J., in Loiip-iclc/e v. Dorville), it is said that the action does 
 not lie upon a promise "in consideiation of a surrender of a lease at 
 will ; for the lessor might determine it." There is indeed a qualification 
 added : " unless there was a doubt whether it was a lease at will or 
 for years ; " but even then, unless the doubt were a very reasonable and 
 well-grounded one, the action would fail. In Smith and Smith's Ca.se 
 the alleged consideration for an assumpsit w^as, that the promisee 
 " would commit the education of his children, and the disposition of his 
 goods after his death during the minority of his said children, for the 
 education of the said children," to the defendant ; and this was held not 
 suiScient, the consideration being only to have the disposition of the 
 goods for the benefit of the children, and not for the defendant's profit. 
 There must be some advantage to the promisor, or detriment incurred 
 by the promisee at his request. [JiIaule, J. It need not be pecuniary. 
 Lord Abint.er, C. B. In Smith and Smith's Case the suggestion in 
 support of the consideration was, that the defendant was to reap a 
 pecuniary advantage, which the court would not presume, because his 
 doing so would have been a breach of trust.] The advantage must be 
 such as can be appreciated in a court of law. There are many cases in 
 which promises, in consideration of forbearance to sue, have been held void 
 where there was no suit that could have been forborne. Tooley v. 
 Windham'^ ; Barber v. Fox ; Loyd v. Lee^. It is true that the giving up a 
 doubtful point of law has been held a good consideration, as in Lonyritlge v. 
 Dorville ; and it may be so where a reasonable doubt exists ; but in this 
 case there could be no doubt on the invalidity of the first guaranty. 
 [Alderson, B. What is the ground on which the giving up a doubtful 
 point of law is a consideration 1 To whom must it be doubtful? The 
 court which decides upon the assumpsit must be supposed capable of 
 deciding the point of law.] There is a degree of uncertainty which the 
 courts will notice. [Maule, J., referred to Jones v. SandalP.] In 
 Stracy v. The Bank of England, the point which might have been litigated 
 was one of great nicety and difliculty. Tindal, C. J., in his judgment, so 
 describes it. The argument on moral obligation can apply only to the 
 first guaranty ; the terms of the declaration do not admit of its being 
 extended to the second. And on the first guaranty no consideration 
 appears, except the general obligation to perform a promise. 
 
 The court below, in their judgment, argue that the words " in con- 
 sideration of your being in advance" might mean "on condition of 
 your being in advance," and suggest, as rendering this probable, that 
 the plaintifl's must have come under the advance at the defendant's 
 request, a supposition not confirmed by any thing which appears on the 
 record ; and they ground upon it the observation : " Here is then 
 
 ' Cro. Eli?.. 20(;. - 1 Stra. 94. - 1 Cowp. 37.
 
 SECT. Ill] BROOKS V. HAIGH. 293 
 
 sutHcieut doubt to make it worth the defendant's wliile to possess lumself 
 of tlie guaranty ; and if that be so, we have no concern with the adequacy 
 or inadequacy of tlie price." They also say : " Whetlier or not the 
 guaranty could have been available within the doctrine of Wain v. 
 Warlters, the plaintiffs were induced by the defendant's promise to part 
 with something whicli they might have kept, and the defendant obtained 
 what lie desired by means of that promise." [Maule, J. The record does 
 not sliew that any document was in the plaintiffs' possession. " Giving 
 up " the guaranty might be merely relinquishing tlie contract. Alderson, 
 B. If they held a written guaranty, it might have been given up by 
 cancelling merely.] The court below argue that the defendant cannot be 
 justified ill breaking liis promise by discovering that the thing in con- 
 sideration of wMch he gave it did not possess that value which he supposed 
 to belong to it. "It cannot be ascertained," they say, "that that value 
 was what he most regarded. He may have had other objects and motives ; 
 and of their weight he was the only judge." But this reasoning would 
 support a promise even in such a case as Barber v. Fox. Tlie plaintiffs 
 contend that trover would have lain for the paper ; but it may be inferred, 
 even from Scott v. Jones, that this would not be so unless tlie paper had 
 some real value. 
 
 Sir 11'. ir. Follelt, contra. As to the observation that no actual 
 delivery of a written paper appears, if that were considered important, 
 the plaintiffs would ask leave to amend. The point was not taken on the 
 former argument ; and, when the declaration speaks of giving up a 
 guaranty, which it describes as " then lield " by the plaintiff's, it cannot 
 reasonably be supposed that nothing is meant but foregoing an engage- 
 ment. Supposing that no action would have lain on the first guaranty, 
 here is an agreement between persons competent to make contracts, 
 without imputation of fraud on either side, by which one is to give up an 
 undertaking signed by the other, and the other in consideration of it is to 
 provide for certain bills. It is assumed witliout reason that the defendant's 
 only object in desiring to have the guaranty back must have been to 
 prevent an action. He miglit not choose that his name should remain 
 abroad in tlie mercantile world, annexed to such a document. It implies 
 an admission wliich he miglit think proper to recall. He might not wish, 
 if sued, to be put to a defence on the Statute of Frauds. If he attached a 
 value to the document from any cause, however inadequate, as a man 
 might be willing to give an immoderate price for a picture or autograpli, 
 the Court will not inquire into tlie goodness of the bargain. Giving up 
 any thing of which they were posses.sed was a disadvantage to the 
 plaintiffs ; and the defendant here was benefited by it. The case 
 therefore differs from that of a mere forbearance to sue, where nothing 
 is given and received. The law of Smith and Smith's Case may be 
 doubted. If the promisee there complied witli terms by which the 
 defendant obtained something from iiini, although those terms could not
 
 294 BROOKS V. HAIGH. [CHAP. Ill 
 
 authorize the making of any illegal profit, it would seem that the 
 defendant was bound. . . . 
 
 Supposing, however, that an action would not have lain on the first 
 guaranty, yet, if the law upon the subject was doubtful (though Boehm 
 V. Caiiijihfll makes it clear on tlie side of the plaintifls), and the parties 
 upon that doubt entered into a bargain for the abandonment of the 
 guaranty, such bargain, made with a knowledge of all the facts, is 
 binding. Lomjridge \. Dorvllle; Htmci/ v. The Bank of England; Com. 
 Dig. Action upon the Case upon Assumpsit (F. 8), referring to 1 Rol. 
 Abr. 23, Actimi sur Case (V.), pi. 27, 28'. It is indeed asked. Who is 
 supposed to entertain the doubt in point of law ? But matters of law may 
 be considered as doubtful to the courts ; and arrangements in equity are 
 often made on the ground of the law being doubtful. [Bosanquet, J. A 
 point may be considered so, on which learned men difler. Lord 
 Abinger, C. B. It is carrying fiction too far to say that the courts must 
 always know how the law will be.] The parties here have made their 
 contract on a consideration which they, knowing all the facts, thought 
 beneficial ; and this is enough. Merchantable or pecuniary value, in any 
 more limited sense, is not to be insisted upon. The case falls within the 
 principle of iStevens v. Lynch, and also within that of Lee v. Muggeridge, 
 and other decisions which have turned upon moral obligation. It results 
 from all these authorities that if parties, having made an engagement 
 which ought to bind them but is incapable of being enforced, replace it by 
 another, that new engagement is valid in law. If the contrary doctrine 
 could prevail, what limit would there be to objections 1 Would a second 
 or third renewal of guaranties be void on account of tlie original defect ? 
 
 Lastly, as was contended below, if the consideration amounts to no 
 more than the delivering up of a paper at the defendant's request, the 
 Court cannot say that it is insufficient. If they do, at what point will 
 they allow sufficiency of consideration to begin % Would the giving up an 
 autograph, or a horse or dog of no merchantable value, be sufficient? 
 [Lord Abinger, C. B. The Attorney-General cited the case of a lease at 
 will.] That relates to a surrender, not the giving up of a document. 
 Papers, though inefl'ectual for the purpose contemplated in drawing them 
 up, may have a value from the mere wish of a party to get them into his 
 own hands. [Rolfe, B. The Lord Chancellor has said that he will never 
 compel the giving up of an instrument which is void on the face of it.] 
 An application in equity for that purpose is very difierent from the 
 enforcing of a bargain to give up something which is considered valuable. 
 [Bosanquet, J. Is not the document property, however small the value ■?] 
 Yes ; and trover would lie for it. In Wilkinson v. Oliveira " it was held 
 sufficient consideration, for a promise to pay £1000 that the plaintiff, 
 
 ' Comyns refers to Kent v. Pratt, Brownl. & Gold. 6, the case cited by RoUe. But 
 it does not appear that any doubtful point of law was contemplated. 
 ^ 1 New Ca. 490.
 
 SECT. Ill] BROOKS V. HAIGH. 295 
 
 being possessed of a certain letter, had given it to the defendant. It 
 is true tliat tlie defendant was alleged to have made a beneficial use of the 
 letter ; but that was not an essential part of the consideration. Here the 
 defendant could judge of the value of the document, and using his 
 judgment made the promise. He cannot now annul it on the ground that 
 the instrument was of no value. 
 
 Sir J. Campbell, Attorney-General, in reply. The last argument rests 
 on a fallacious assumption. The bargain declared upon was not for the 
 delivery of a piece of paper, but for the release of a contract. It does not 
 appear that the paper itself may not even now be in the plaintiff's 
 possession. The plea, that the guaranty was of no effect, agrees with this 
 view of the case. The main argument on the other side, assuming the 
 first guaranty to be void, is in effect that, because it was given up at the 
 defendant's request, he is estopped from saying that such an abandonment 
 was no consideration for his promise. But this is contrary to the 
 principle of many placita in Com. Dig., Action upon the Case upon 
 Assumpsit (F. 8), already cited. On those authorities, if the right 
 foregone was in reality null, it cannot be material that the parties made 
 their agreement on a contrary supposition. . . . 
 
 Stevens v. Lynch, where the holder of a bill had given time to the 
 acceptor, and the drawer waived the benefit of that circumstance, is not 
 applicable to the present case. As to Lee v. 3fii;/geridije and the other 
 cases which have turned upon moral obligation, it is sufficient to say that 
 here no moral obligation appears for the first guaranty, and the declaration 
 does not allege any consideration for the second guaranty, but the 
 abandonment of the first. 
 
 Cur. adv. vult. 
 
 Lord Abinger, C. B., in the same Vacation (June 29th) delivered the 
 judgment of the Court. 
 
 In the case of Brooks v. llairjh the judgment of the Court is to affinn 
 the judgment of the Court of Queen's Bench. 
 
 It is the opinion of all the Court that there was in the guaranty an 
 ambiguity that might be explained by evidence, so as to make it a valid 
 contract ; and therefore this was a sufficient consideration for the promise 
 declared upon. 
 
 It is also the opinion of all the Court, with the exception of my 
 brother Maule, who entertained some doubt on the question, that the 
 words both of the declaration and the plea import that the paper on which 
 tlie guaranty was written was given up ; and that the actual surrender of 
 the possession of the paper to the defendant was a sufficient consideration, 
 without reference to its contents. 
 
 Judgment affirmed.
 
 29G CiRf:AT NORTHERN RAILWAY COMPANY V. WITIIAM. [CHAP. Ill 
 
 GREAT NORTHERN RAILWAY COMPANY v. WITHAM. 
 Is THE Common Pleas, November 6, 1873. 
 
 [Reporteii in Law Reports, 9 Common Pleas, 16.] 
 
 The first count of the declaration stated that it was agreed by and 
 between tlie plaintiffs and the defendant that the defendant should supply 
 and sell and deliver to tlie plaintiffs at Doncaster station, and that the 
 plaintiff's should liuy and accept of him, any quantity they might require 
 and order of him during a period ending on the 31st of October, 1872, of 
 certain descriptions of iron, at certain prices agreed on between them ; 
 tliat all things were done and happened and existed, and times had 
 elapsed, to entitle the plaintiffs to a performance by the defendant of his 
 agreement and to maintain the action for the breach by him of the same 
 as thereinafter alleged; yet that the defendant did not nor would supply 
 and sell and deliver to the plaintiffs at Doncaster station or elsewhere 
 divers quantities of the said descriptions of iron, which the plaintiffs 
 required and ordered of him during the said period, whereby the plaintiflfs 
 were obliged to procure quantities of iron from other persons at higher 
 prices than those to be paid by them as aforesaid, and were otherwise 
 injured. 
 
 Second count, that it was agreed by and between the plaintiffs and the 
 defendant that the defendant should supply and sell and deliver to the 
 plaintiff's at Doncaster station, and that tlie plaintiff's should buy and accept 
 of him, any quantity they might order of him for half the requirements 
 of the plaintiff's during the said period ending on the 31st of October, 
 1872, of certain descriptions of iron, at certain prices agreed on between 
 them ; that all things were done, &c., yet the defendant did not nor 
 would supply and sell and deliver to the plaintiff's, as agreed on as 
 aforesaid, divers quantities of the said descriptions of iron, which the 
 plaintiff's ordered of him for half the requirements of the plaintiff's during 
 the said period ending the 31st of October, 1872, whereby the plaintiff's 
 were obliged to procure quantities of iron from other persons at higher 
 prices than those to be paid as aforesaid, and were otherwise injured. 
 Claim, 2000^. 
 
 Pleas : 1. That it was not agreed by and between the plaintiff's and 
 the defendant, as alleged ; 2. That the plaintiflfs did not require or order 
 iron as in the declaration alleged. 
 
 There was also a demurrer to each count of the declaration, on the 
 ground that it disclosed no consideration for the defendant's promise to 
 supply the iron therein mentioned. Issue, and joinder in demurrer. 
 
 The cause was tried before Brett, J., at the sittings at Westminster 
 after the last term. The facts were as follows :— In October, 1871, the
 
 SECT. Ill] GREAT NORTHERN RAILWAY COMPANY V. WITHAM. 297 
 
 plaintiffs advertised for tenders for tlie supply of goods (amongst other 
 things iron) to be delivered at their station at Doncaster, according to a 
 certain specification. The defendant sent in a tender, as follows : — 
 
 " I, the undersigned, hereby undertake to supply the Great Northern 
 Railway Company, for twelve months from the 1st of November, 1871, 
 to 31st of October, 1872, with such quantities of each or any of the 
 several articles named in the attached specification as the company's 
 store-keeper may order from time to time, at the price set opposite 
 each article respectively, and agree to abide by the conditions stated 
 on the other side. 
 
 (Signed) " Samuel Witliam." 
 
 The company's officer wrote in reply, as follows :— 
 
 " Mr. S. Witham. 
 
 " Sir, — I am instructed to inform you that my directors have accepted 
 your tender, dated, Ac, to supply this company at Doncaster station any 
 quantity they may order during tlie period ending 31st of October, 1872, 
 of the descriptions of iron mentioned on the inclosed list, at the prices 
 specified therein. The terms of the contract must be strictly adhered to. 
 Requesting an acknowledgment of the receipt of this letter, 
 
 (Signed) " S. Fitcli, Assistant Secretaiy." 
 
 To this the defendant replied, — " I beg to own receipt of your favour of 
 20th instant, accepting my tender for bars, for which I am obliged. 
 Your specifications shall receive my best attention. S. Witham." 
 
 Several orders for iron were given by the company, which were from 
 time to time duly executed by the defendant ; but ultimately the 
 defendant refused to supply any more, whereupon this action was 
 brought. 
 
 A verdict having been found for the plaintiffs, 
 
 Nov. 5. Digby Seymour, Q.C., moved to enter a nonsuit, on the 
 ground that the contract was void for want of mutuality. He contended 
 that, as the company did not bind themselves to take any iron whatever 
 from the defendant, his promise to supply them with iron was a promise 
 wthout consideration. He cited Lees v. Whitcomh ' ; Burton v. Great 
 Nortliern Railway Co.'; Sykes v. Dixmi' ; and Bealey v. Stuart*. 
 
 Cur. adv. vult. 
 
 Nov. 6. Keating, J. In tliis case Mr. Digby Seymour moved to 
 enter a nonsuit. The circumstances were these : — The Great Northern 
 Railway Company advertised for tenders for the supply of stores. 
 The defendant made a tender in these words, — " I hereby under- 
 take to supply the Great Northern Railway Company, for twelve months, 
 from ikc. to &c., with such quantities of each or any of the several articles 
 
 1 5 Biug. 34. = 9 Ex. 507; 23 L. J. (Ex.) 18i. 
 
 ^ 9 Ad. & E. 693. ■> 7 H. & N. 7S3; 31 L. J. (Ex.) 281.
 
 298 GRFAT NORTHERN RAILWAY COMPANY V. WITHAM. [CHAP. Ill 
 
 named in tlio attached specifications as the company's store-keeper may 
 order from time to time, at the price set opposite each article respectively," 
 A'c. Some orders were given by the company, which were duly executed. 
 I'.iit tlie order now in question was not executed; the defendant seeking 
 to excuse himself from the performance of his agreement, because it was 
 unilateral, the company not being bound to give the order. The ground 
 upon which it was put by Mr. Seymour was, that tliere w-as no considera- 
 tion for the defendant's promise to supply the goods ; in other words, that, 
 inasmuch as there was no obligation on the company to give an order, 
 there was no consideration moving from the company, and therefore no 
 obligation on the defendant to supply the goods. The case mainly 
 reUed on in support of that contention was Burton v. Great Northern 
 liailway Co. '. But that is not an authority in the defendant's favour. It 
 was the converse case. The Court thei'e held that no action would 
 lie against the company for not giving an order. If before the order was 
 given the defendant had given notice to the company that he would not 
 perform the agreement, it might be that he would have been justified in so 
 doing. But here the company had given the order, and had consequently 
 done something which amounted to a consideration for the defendant's 
 promise. I see no gi'ound for doubting that the verdict for the plaintiffs 
 ought to stand. 
 
 Brett, J. The company advertised for tenders for the supply of 
 stores, such as they might think fit to order, for one year. The defendant 
 made a tender oflering to supply them for that period at certain fixed 
 prices ; and the company accepted his tender. If there were no other 
 objection, the contract between the parties would be found in the tender 
 and the letter accepting it. This action is brought for the defendant's 
 refusal to deliver goods ordered by the company ; and the objection 
 to the plaintifts' right to recover is, that the contract is unilateral. I do 
 not, however, understand what objection that is to a contract. Many 
 contracts are obnoxious to the same complaint. If I say to another, " If 
 you w^ill go to York, I will give you 100/.," that is in a certain sense 
 a unilateral contract. He has not promised to go to York. But, if he 
 goes, it cannot be doubted that he will be entitled to the 100/. His going 
 to York at my request is a sufficient consideration for my promise. So, if 
 one says to another, " If you will give me an order for iron, or other 
 goods, I will supply it at a given price ;" if the order is given, there is a 
 complete contract which the seller is bound to perform. There is in such 
 a case ample consideration for the promise. So, here, the company having 
 given the defendant an order at his request, his acceptance of the order 
 would bind them. If any autliority could have been found to sustain Mr. 
 Seymour's contention, I should have considered that a rule ought to be 
 granted. But none had been cited. Burton v. Great Northern Railway Co.' 
 ' 9 Ex. .507; 23 L. J. (Ex.) 184.
 
 SECT. IV] FISHER V. RICHARDSON. 299 
 
 is not at all to the purpose. This is matter of every day's practice ; and 
 I think it would be wrong to countenance the notion that a man who 
 tenders for the supply of goods in this waj' is not bound to deliver them 
 when an order is given. I agree that this judgment does not decide the 
 question whetlier the defendant might have absolved himself from the 
 further performance of the contract by giving notice. 
 
 Grove, J. I am of the same opinion, and have nothing to add. 
 
 Jiule 7-efused. 
 
 SECTION IV. 
 
 COMPROMISE AND FORBEARANCE. 
 
 FISHER V. EICHARDSON, Executor, & HILL. 
 
 In the King's Bench, Michaelmas Term, 1603. 
 
 [Beported in Crake's James, 47.] 
 
 Assumpsit. For that the Testator being indebted unto him by single 
 contract, the Defendant being Executor, and having assets in his hands to 
 satisfie all debts and legacies, assumed, that if he forbear to sue him until 
 such a time, he would pay ; and alledgeth in facto, that he forbear and 
 had assets, cfec. and hereupon the Defendant demurred. Hcdley argued 
 for the Plaintiff; that inasmuch as the testator was chargeable at the 
 common law in an Assumpsit, (as hath been adjudged) the duty remains, 
 although he be dead. And although no action of debt lies against the 
 executor, because tlie testator might have waged his law ; yet an action 
 upon the case lies, mth an averment of Assets to satisfie, as the case is 
 betwixt Norr and Read ; and if in this case, debt be brought against the 
 executor, if he pleads Non debet, he shall be charged ; therefore the 
 staying of the suit is sufficient consideration to ground this action. 
 And here he might have been sued in Chancery, the staying whereof 
 is good cause of Assumpsit : Wherefore, ifec. And of this opinion was the 
 whole Court, without argument. Wherefore it was adjudged for the 
 Plaintiff.
 
 ;j00 BIDWELL V. CATION. [cHAP. Ill 
 
 BIDWELL V. CATTON. 
 
 Hilary Term, 1618. 
 
 [Reported in Ilobart, 21G.] 
 
 Bi DWELL, an attorney brought an action of the case against Catton, 
 Executor of Reve, and counted that, wliereas he had in Michaelmas Term, 
 14 Jac. prosecuted an attachment of privilege against Reve tlie Testator, 
 returnal)le in Hil. Term, the Testator knowing of it, in consideration that, 
 at liis request, the plaintiti" would forbear to prosecute tlie said writ any 
 further against the said testator, the testator did promise to pay him £50. 
 And tlien avers, <fcc. And after a verdict it was excepted in arrest of 
 judgment : 
 
 First, that it was not alleged that the plaintiff had any just cause 
 of action. 
 
 Secondly, that this action still remains... 
 
 But the Court nevertheless gave judgment : For first, suits are not 
 presumed ca.useless, and the promise argues cause, in that he desired to 
 stay off the suit. Quare, if the Defendant had averred that there was no 
 cause of suit. 
 
 Secondly, though this did not require a discharge of the action, yet it 
 requires a loss of the writ, and a delay of the suit, which was both benefit 
 to the one, and loss to the other... 
 
 LOYD V. LEE. 
 
 Before Pratt, 0. J. at Nisi Prius, 1718. 
 
 [Beportcd in 1 Strange, 94.] 
 
 A MARRIED woman gives a promissory note as a feme, sole ; and after 
 her husband's death, in consideration of forbearance, promises to pay it. 
 And now in an action against her, it was insisted that, though, she being 
 under coverture at the time of giving the note, it was voidable for that 
 reason, yet by her subsequent promise, when she was of ability to make a 
 promise, she had made lierself liable, and the forbearance was a new 
 consideration. But the O.J. held the contrary, and that the note was not 
 barely voidable, but absolutely void ; and forbearance, where originally 
 there is no cause of action, is no consideration to raise an assumpsit. But 
 he said it might be otherwise where the contract was but voidable. And 
 so the plaintiff was called.
 
 SECT. IV] JONES V. ASHBURNHAM. 301 
 
 JONES I'. ASHBURNHAM AND NANCY HIS WIFE. 
 In the King's Bench, January 31, 1804. 
 
 [Reported in 4 E<tst, 455.] 
 
 The Plaintifl' declared that whereas one S. F. Bancroft, since deceased, 
 at the time of his death was indebted to him in !)Sl. for goods before tliat 
 time sold and delivered to the deceased, whereof the defendant Nancy had 
 notice, and thereupon, after the death of Bancroft, the defendant Nancy, 
 before her intermarriage with tlie otlier defendant Asliburnham, in conside- 
 ration of the premises, and also in consideration that the plaintiff, at the 
 special instance and request of the defendant Nancy, would forbear and 
 give day of payment of the said 58/. as aftermentioned, she the said Nancy, 
 by a note in writing signed by lier according to tlie form of the statute, 
 &c. on tlie 20th of March 1801, undertook and promised the plaintiff to 
 discliarge the said debt so due and owing to him in a reasonable time, and 
 to send him 20/. in part payment in the July following : and although the 
 same July is long since passed, during which the said Nancy continued 
 sole, and a reasonable time elapsed for the payment of the whole 58/., 
 according to the tenor and effect of the said promise, and though the 
 plaintiff has always from the time of making the said promise hitherto 
 forborne and given day of payment of the said debt, whereof the defendant 
 Nancy before her intermarriage, and both the defendants since their 
 intermarriage, have had due notice, yet the defendants have respectively, 
 (fee. refused to pay, &o. There were other counts in substance the same ; 
 one alleging the forbearance to be till July, &o. To all which there was a 
 demurrer, assigning for special causes ; that it is not alleged in the decla- 
 ration from whom the said sum of 58/. therein mentioned was due and 
 owing to the plaintiff at the time when the defendant Nancy is supposed 
 to have made the promise and undertaking mentioned, or tliat any persons 
 or person were or was then liable to pay the plaintifi' that sum ; and that 
 it is not alleged to whom the plaintifl" hath forborne and given day of 
 payment of the said 58/. ; and that the declaration does not disclose any 
 legal and sufficient consideration for the supposed promise ; nor does it 
 thereby appear that the plaintifl' has any good cause of action against the 
 defendants, &c. 
 
 Marryat in support of the demurrer. This is a promise made by 
 a stranger to the original contract or consideration for the supposed 
 forbearance. But a promise to forbear generally is not a .sufficient 
 foundation for an assumpsit without shewing a person who was 
 liable to pay the debt. If the promise had been laid barely for 
 forbearing to sue the defendant, it not appearing that she was before 
 liable for any debt to the plaintiff", the action could not have been
 
 302 JONES V. ASHIIURNHAM. [CHAP. Ill 
 
 sustained : then it cannot .aid tlie plaint tliat a debt is stated to be due to 
 tlie plaint ili', witiiout stating any person from whom he could have 
 enforced payment. It is not enough that there m;iy be some person 
 liable to liim in rerum natura who is unknown. All the cases upon the 
 subject are collected in 1 Com. Dig. 160, Action upon the Case upon 
 Assumpsit, F. 8, which shew that no action can be maintained upon an 
 assuTnpsit in consideration of forbearance where the party was not charge- 
 able ; as in the case of an heir who has no assets. This case is not 
 distinguishable in principle from those. To sustaiii such an action the 
 plaintiff must shew that he was in a situation to forbear some person 
 whom he might have sued, whom it would have been beneficial to him to 
 have sued, and consequently, whom it was detrimental to him to forbear 
 suing. Here it is not shewn that any person was liable to the plaintiff at 
 the time of the promise made ; for the original debtor was dead, and no 
 representation was taken out, nor, for aught appears, any assets, nor any 
 suit surceased in consequence of the promise which the plaintiff could 
 have supported. In ismith v. Jones ', the plaintiff declared that his father 
 bequeathed him a legacy of 71. and made C. his executrix, and died, and 
 that the defendant intermarried with C. ; and that in consideration that 
 assets of the plaintirt"s father came into the hands of the defendant, and 
 in consideration that the plaintiff would forbear" the 71. till All Saints 
 following, the defendant promised to pay it at that time : and then the 
 plaintiff shewed that he had forborne, itc. till the day, yet the defendant 
 had not paid him. The plaintiff pleaded that C, the executrix of the 
 father, died intestate at such a place before the promise made : upon 
 which the plaintiff demurred ; and the judgment was given against him : 
 for by the death of the executrix before the promise, it appeared that 
 there was not any consideration sufficient to charge tlie defendant, who 
 was not chargeable with the legacy after the death of his wife, the 
 executrix. The report states further, that the declaration was also holden 
 ill, " because it did not shew precisely what person the plaintiff was to 
 forbear to sue for the 71. ; for it could not be intended that he should 
 forbear the defendant, who it appeared by law was not chargeable with 
 it." So in Hosier v. Langdale^, the plaintiff declared against a feme 
 administratrix, that she, in consideration that he would forbear suit until 
 she had taken out letters of administration, promised to pay him a certain 
 sum owing to him by her intestate. And after verdict and judgment, 
 error was brought ; for that the plaintiff had set forth no consideration 
 for the assumpsit ; for till administration taken out by the defendant she 
 was not liable to be sued, except there were a cause depending, which 
 there was not. And tiiis was holden to be a good exception. 
 
 1 Yelv. 184. 
 
 ' i.e. forbear to sue the defendant for the 11. according to the report of the s. c. in 
 Cro. Jac. 2.57. 
 
 ' Sty. 2-18, and vide Ilaywnrd v. Duch't, ib. 405.
 
 SECT. IV] JONES V. ASHBURNHAM. tiO^ 
 
 The subsequent case indeed, of Huiiie v. Hinton\ may seem to 
 contradict that, wliere it was holden tliat a general forbearance 
 of tlie debt was in eflect a forbearance to sue all the world, and 
 was suthcieut to uphold an assumpsit, without shewing that any par- 
 ticular person was liable to pay : but that, it is to be observed, was 
 after verdict, when it might be presumed that some person was sliewn 
 to be liable. And further, it is said to have been decided upon the 
 authority of a case of Uill v. Baileij, over-ruling that of Smith v. Jones. 
 But in Uill v. Bailey, which is reported in 1 Rol. Abr. 22 ", there was an 
 averment that the goods of the plaintiti"s debtor came legitimo modo after 
 his death to the defendant, who, in consideration that the plaiutifl" would 
 forbear his debt, promised to pay it. There was, therefore, a good con- 
 sideration for the promise to forbear generally. And in Rejnolds v. 
 Frosser ^, Hardres, in argument, cites the same case of Hume v. llinton 
 (under the name of Uummers v. IIuHtoii), as having been adjudged to be 
 no consideration to sustain the promise. There is another case whicli may 
 be cited for the plaintift', of Quick v. Copleton *, wliere the defendant's late 
 husband being indebted to the plaintiff, and the defendant about to come 
 to London, and in fear of being arrested by the plaintiff, slie promised to 
 pay him in consideration tliat he would not trouble her, and would forbear 
 till Michaelmas. And after verdict it was moved in arrest of judgment, 
 that she not being shewn to be executrix or administratrix, her forbearance 
 was not any consideration ; which was agreed by the Court : but they 
 held that the subsequent words, forbear tiU Michaelmas, were general, not 
 only to forbear her but all others, and made a good consideration. But 
 the opinion afterwards delivered by Hyde, C.J. very much shakes the 
 autliority of this case ; for he says that a forbearance to sue one who fears 
 to be sued is a good consideration ; which certainly cannot be maintained : 
 and he cited a case in C. B. when he sat there, where a woman, who 
 feared that the dead body of her son would be arrested for debt, was 
 holden liable upon a promise to pay in consideration of forbearance, 
 though she was neither executrix nor administratrix. But of this the 
 other Judges are said to have doubted. [Lord Ellenborough, C. J. It is 
 impossible to contend that this last forbearance could be a good considera- 
 tion for an assumpsit; for to seize a dead body upon any such pretence would 
 be contra bonos mores, and an extortion upon the relatives.] The weight 
 then of the authorities is with tlie defendant, as the principle clearly 
 is -with him. For as where the forbearance is stated to be of the defendant 
 liimself, the plaintiff must shew that he was before liable to be sued ; so 
 when the forViearance is general, of all the world, it is equally reasonable 
 that the plaintiff sliould shew some one person wlio was liable to him : for 
 the forbearance of a groundless suit has been lioklen to be no consideration 
 for an assumpsit ; as in Toohy v. Windham \ and Loijd v. Lee °. Here 
 
 > Sty. 301. 2 And ,.,-,/e i Danv. Abr. .50. :' Hardr. 73. 
 
 * 1 Lev. IGl. 1 Sia. 242. 1 Keb. 8G6. = Cro. Eliz. 20G. '' 1 8tra. 94.
 
 304 JONES V. ASHBURNHAM. [CHAP. Ill 
 
 the defendant is not sliewn to be executrix or administratrix, or to have 
 assets; and a promise even by an executor, as such, is a mere nudum 
 pactum without assets at the time '. 
 
 Jen-is contra. Tlie consideration of general forbearance, as here laid, 
 is suiKcient to maintain the assumpsit. To sustain a promise the consider- 
 ation must either be beneficial to the defendant or detrimental to the 
 plaintiff. In PiliaHS v. Van Mie.rop^ Yates J. says, "Any damage to 
 anotlier, or suspension or forbearance of his right, is a foundation for an 
 undertaking, and will make it binding, though no actual benefit accrue to 
 the party undertaking:" he adds, that there "the promise and under- 
 taking of tlie defendants did occasion a possibility of loss to the plaintiffs." 
 It is part of the definition that there must be a right in the plaintiff; 
 wliicli furnislies an answer to the cases of Tooley v. Windham', and 
 Loi/d V. Le.e\ where no such right appeared. Now here the plaintiff 
 shews a debt due, and a right to recover, though not against any person 
 named : but it is enough that he shews a possibility of loss by the forbear- 
 ance. [Lord Ellexborough, C. J. It is not entitled to the name of forbear- 
 ance unless you shew something or somebody to be forborne. If there be 
 a right which can be enforced against any body, no doubt that a promise 
 to forbear is a good consideration : but if there be no person liable, how is 
 it entitled to the name or quality of forbearance 1] The cases shew that it 
 is suflicient if there be a right in the plaintiff, which is forborne, though 
 not shewn to be capable of being enforced at the time against any 
 particular person ; as in Quick v. Copleton % where the consideration 
 relied on by the Court was not the fear of being sued, but the general 
 forbearance, "to forbear till Michaelmas." And yet it was not averred 
 there that either the defendant or any other person was executrix, &c. of 
 tlie deceased debtor ; and consequently no person appeared to be liable to 
 the plaintLti' at tlie time. So in the case of Hill v. Baileij in 1 Rol. Abr. 
 22, the consideration relied on was not that the goods of the deceased 
 debtor came to the defendant's hands legitimo modo, for then there was no 
 occasion to lay any forbearance; but the judgment turned on the suflieiency 
 of the general forbearance to sue, to sustain the assumpsit. [Lawrence, J. 
 The promise to forbear goes farther than the lawful possession of assets ; 
 for it makes the defendant liable to judgment de bonis propriis, and not 
 merely as far as the assets go.] Then the case of Hume v. Hinton^ is in 
 point (wliicli is merely misquoted by Hardres ' in argument), and that was 
 subsequent to Smith v. Jones ', which, it appears from all the reports of it 
 taken together, was a promise, not for forbearance generally, but to 
 forbear the defendant ; which reconciles the authorities : and the same 
 answer will apply to Jiosyer v. Latujdale ', which was a promise in consi- 
 deration that the plaintiff would forbear suit until the defendant had 
 
 ' Rami V. Hughes, 7 Term Eep. 350. n. a. ^ 3 Burr. 1673. » Cro. Eliz. 206. 
 * 1 Stra. 04. » 1 Lev. 161. 1 Sid. 242. 1 Keb. 866. « Sty. 304. 
 
 " Hardr. 73. » Yelv. 184. Cro. Jac. 207. Oweu, 133. » Sty. 248.
 
 SECT. IV] JONES ('. ASHHURNHAM. 305 
 
 taken out administration ; wliicli was taken to mean a forbearance to sue 
 the defendant. But where a person is sued as executor, which was the 
 case in Rann v. Hiu)hp.s\ Ins liability on a promise to pay can only 
 be coextensive with his original liability in re.'sppct of assets. 
 Marryat, in reply, was stopped by tlie Coui-t. 
 
 Lord Ellenborough, C. J. The way in whicii 1 am disposed to con- 
 sider this case will break in upon no recognized rule of law, nor on the 
 plain sense of what was laid down by Mr. Justice Yates, in the case of 
 PiUans v. Van Mierop. It is a known rule of law, that to make a 
 promise obligatory there must be some benefit to the party making it, or 
 some detriment to the party to whom it is made ; otherwise it is 
 considered as nudum pactum and cannot be enforced. I do not say that 
 the opinion which I have formed will not bi-eak in on any of the cases 
 which have been cited, but it entrenches on no general rule ; and' in order 
 to shew that, I will examine the rule referred to as laid down by Mr. 
 Justice Yates, and .see how it applies to the present case. He says that 
 " any damage to anothei-, or suspension or forbearance of his right, 
 is a foundation for an undertaking," &c. Now how does the plaintitf 
 shew any damage to himself by forbearing to sue, when there was no fund 
 which could l)e the object of suit : where it does not appear that any 
 person in rerum natura was liable to be sued by him ? No right can exist 
 in this \-ague, abstract, and indefinite way. Right is a correlative term : 
 there must be some object of right ; .some object of suit ; some party who, 
 in respect of some fund or some character known in the law, is liable ; 
 otherw'ise there cannot be said to be any right. Has there been then any 
 suspension of the plaintifTs right 1 Now unless a right is capable of being 
 exercised, unless it can be put in force, tliere can be no suspension of it. 
 And that it could have been exercised or put in force, but for the promise 
 made by the defendant, is not shewn. Then what forbearance is shewn'? 
 It must be a forbearance of a right which may be enforced with effect. It 
 is true that a promise may be binding though there may be no actual 
 benefit resulting to the party making it, because it is enough if the plain- 
 tiff may be damaged by it ; l)ut it does not appear here that the forbear- 
 ance could produce any detriment to the plaintiff. It does not therefore 
 appear that Mr. Justice Yates laid down any doctrine which does not 
 square with the general received rule of law, that to sustain a promise 
 there must be a benefit on the one hand nr a detriment on the other. 
 But here, whether there were any representative or any funds of the 
 original debtor does not appear. Then, as to the cases cited, that of 
 Kosyer v. Latvjdale is strong to the purpose ; for it was there decided that 
 a promise in consideration that the plaintifi' would forbear suit until the 
 defendant had taken out letters of administration was without foundation, 
 because it did not appear that the party was liable before administration 
 
 ' 7 Term. Kep. 330, u. 
 
 F. 20
 
 30C JONES ('. ASIlBniXHAM. [CIIAP. Ill 
 
 taken out. And this wiis rij^litly detei'mined ; for forbearance of an 
 •mifounded suit is no forbearance. But this case is attempted to be met by 
 thtt of Uume v. Ilinton, in tlie same book, where a piomise by the motlier 
 of an intestate indebted to the plaintiff, that if he would stay for the 
 nionev till a given day she would pay it, was sustained. That, however, 
 was after verdict ; and that is material to be attended to, because it might 
 be presumed to liave been proved that the defendant had so interaieddled 
 witli tlie intestate's effects as to make herself liable as executrix de son 
 tort, and had funds of the deceased in her hands for wjiicli, but for 
 the promise made, she might have been sued in that character. But 
 no such intendment can be made here. The case of Quick v. CoplHon is 
 also relied on. That too was after verdict ; and it was moved in arrest of 
 judgment, for want of consideration. I think that even after verdict, that 
 declaration would be bad, being vicious on the face of it. It is stated that 
 tlie defendant's late husband was indelited to the plaintiff, and that she 
 (not stating her to be clothed with any representative character) about to 
 come to London, and being in fear to be arrested by the plaintiff, promised, 
 &c. Now an attempt to impose upon a person an unlawful terror, (and 
 the threatening of an unlawful suit is as bad), can never be a good con- 
 sideration for a promise to pay : yet that ground is insisted on by the 
 Chief Justice. And as to the case there cited by him, of a mother who 
 promised to pay, on forbearance of the plaintiff to arrest the dead body of 
 her son, which she feared he was about to do ; it is contrary to every 
 principle of law and moral feeling. Such an act is revolting to humanity, 
 and illegal ; and therefore any promise extorted by the fear of it could 
 never be valid in law. It might as well be said that a promise, in 
 consideration that one would withdraw a pistol from another's breast, 
 could be enforced against the party acting under such unlawful terror. 
 Here, there being no consideration of benefit to the defendant, or of 
 detriment or possibility of detriment to the plaintiff, shewn by him on the 
 face of the declaration, and this coming on upon demurrer, where nothing 
 can be intended, as it may after verdict, I am clearly of opinion that the 
 declaration is bad. 
 
 Grose, J. It must be admitted, that if a consideration for the promise 
 do not sufficiently appear upon the face of the declaration, it cannot be 
 supported. There is a great difference between questions of this sort, 
 arising upon demurrer to the declaration, and in arrest of judgment after 
 verdict ; in which latter case every thing is to be intended which can be 
 in favour of the verdict : but not so on demurrer. It is however said, 
 that a detriment to the plaintiff will support an assumpsit as well as a 
 benefit to the defendant, and that here the plaintiff alleges a forbearance. 
 But it is a perversion of terms to call that a forbearance to sue if there 
 were no person who was capable of being sued : and here none is shewn. 
 There can be no foi-bearance in such a case ; and therefore there is an end
 
 SECT. IV] JONES r. ASHBURNHAM. oO? 
 
 of the consideration. This is too plain to require any thinj; fui'ther to Ije 
 said upon it, and makes it unnecessary, after wliat my Lord has .s;xid, to 
 enter into the consideration of the cases. 
 
 Lawrence, J. This question arises upon a special demurrer, which 
 points out an objection to the declaration, that no person is stated w^ho 
 was liable to be sued at the time of the promise made, in respect to whom 
 the plaintitf can be said to have forborne suit. And on this ground the 
 case is distinguishable from those relied on by the plaintift"'s counsel, 
 w-hich were after verdict ; and in support of which it might be said that 
 when the jury found that the plaintift' did forbear to sue, they must 
 he pre-sumed to liave found, upon proof laid before them, that tliere was 
 somebody wlio could liave been sued. But no sucli intendment can 
 be made upon demurrer. The argument proceeds upon a fallacy, in 
 supposing tliat some person must exist liable to tlie plaintiff's suit, to 
 forbear whom must consequently be a disadvantage to him, and a conside- 
 ration for the defendant's promise. But that is not so. The deceased 
 might leave no assets, and there might l)e no administration to him taken 
 out : there would then be no person to sue. So he might be a bastard and 
 have no legal rejjresentatives entitled to take out administration of his 
 effects, in which case the Crown would be entitled to them ; and still there 
 would be nobody to be sued. It is not therefore true that there must be 
 somebody liable to whom a forliearance to sue niay refer. And I agree 
 with the argument of the defendant's couiisel that if it be no consideration 
 f(3r the promise to forbear to sue the defendant without shewing that the 
 defendant was before liable to have been sued, it can be no consideration 
 for a promise to forbear to sue all the world generally, without sliewing 
 that some person or other was liable to lie sued : for without that, the 
 ])laintill' does not shew any detriment arising to him from the forbearance 
 of his suit. The principle is admitted that the plaintiff must shew some 
 benefit to the defendant or some detriment to himself. And I understand 
 Mr. Justice Yates, in illustrating that principle in the passage cited, to say 
 tjiat where it appears on the face of the declaration that there is somebody 
 whom the plaintiff may sue, it is not necessary to shew that he would be 
 l)enefited by suing him ; it is sufficient that there is some person whom he 
 might sue and from whom lie miglit obtain satisfaction. 
 
 Le Blanc, J. The definition by Mr. Justice Yates of a consideration 
 sufficient to maintain a promise is, that it be either of some benefit to the 
 defendant or some detriment to the plaintiff'. It is sufficient, if it be a 
 detriment to the plaintiff, though no actual benefit accrue to the party 
 undertaking. So far only the definition goes. Afterwards, indeed, 
 in commenting on that definition, he says, that the promise of the defend- 
 ant did occasion a possibility of loss to the plaintiff's. They might, he says, 
 have been thereby prevented from resorting to the original debtor, or 
 getting further security from him. But all this latter part is only a 
 
 20—2
 
 308 ATTWooi) V. . [chap. Ill 
 
 coiiiiiiciit on tlie (lotiiiition, and slicwing how the case then in juclgnient 
 apiilictt to it. But I do not take it to be any part of the definition itself 
 intended to he hiid down by him, that if any person stated that lie had 
 forborne suing on a cause of action which might (or might not) by possibi- 
 lity occasion a loss to him, that was a suilicient ground for an undertaking 
 by another to pay him. Now here the plaintifi' endeavours to make out 
 a detriment to himself by shewing that one deceased was indebted to him, 
 and that in consideration that he would forbear and give day of payment 
 the defendant promised, &c. But it does not follow of course from thence 
 that any detriment arose to the plaintiff from his forbearance, if it do not 
 appear that there was any person whom he could have sued. And the 
 general current of authorities shews that it is not sufficient to state a 
 consideration to forbear generally, unless it be also shewn that there was 
 some person to be forborne. Now here tlie declaration does not state that 
 there was any representative of the debtor, or that any person had taken 
 out administration to him, or that any person was going to administer to 
 the effects and to satisfy the plaintiff's debt, but was prevented from 
 so doing by the undei-taking of the defendant. There, therefore, appears 
 to be a want of consideration to sustain the promise. 
 
 Judgment for the Defendant. 
 
 ATTWOOD 
 
 In Chancery, Maucii G, 7, 8, 13, 182G. 
 
 \Iie^oni:A in 1 Hussell, 353.] 
 
 Mrs. Shackle, as the executrix of her husband, John Baptist Shackle, 
 was entitled to a sum of about 1800^., due from one Norton, which was 
 secured by promissory notes, and a bond, as well as by the deposit of the 
 lease of a brewery and other property. In July, 1822, application was 
 made to Norton to pay the debt ; it was not convenient for him to do so ; 
 but he stated, both to Mrs. Shackle and to W., her solicitor, that he had 
 agreed to sell some leasehold property in Uxbridge, called the King's Arms 
 Inn, and that, when the sale was completed, her demand, or a part of it, 
 would be paid out of the purchase-money. These latter premises were 
 subject to a prior equitable charge of 1000/., due to W., as the executor of 
 Martha Hill ; and the title-deeds were at that time in W.'s possession. 
 W. had been the solicitor of Mrs. Shackle's husband, and was employed by 
 her in the same capacity ; and the securities for the debt owing to her by 
 Noi^ton were in his hands. In this state of things, Mrs. Shackle, in July, 
 1822, procured from Norton a written order, in the following words :
 
 SECT. IV] ATTWOOD V. . 309 
 
 " Sir : I have .agreed to settle Mrs. Shackle's account by the sale of 
 the King's Arms, so that you will recei\-e, upon settlement, the whole of 
 the amount, 2500/. : lOOOZ. for yourself, and 1500/. for Mrs. Shackle; the 
 remainder to be paid in cash to jNIrs. Shackle. 
 
 " Daniell Scott Norton. 
 "July 12th, 1822. 
 
 " Any thing you may wish me to sign for the purpose, I shall be hapjiy 
 to do." 
 
 This order was not addressed to any person, but was left at W.'s office, 
 by a son-in-law of Mrs. Shackle. 
 
 In February following, Norton paid W. the 1000/. due to Mrs. Hill's 
 estate; and on that occasion, W., notwithstanding the purport of the 
 note transmitted to him in July, 1822, proceeded, without authority from, 
 or communication with, Mrs. Shackle, to deliver to Norton the title-deeds 
 of the property of which ilrs. Hill had been the mortgagee. Norton then 
 completed the sale of the King's Arms Inn ; received the purchase-money ; 
 did not pay any part of it to Mrs. Shackle; and, in March, 1823, became 
 bankrupt. The premises thus sold had yielded about 1500/. beyond the 
 1000/. paid in discharge of Mrs. Hill's equitable mortgage. 
 
 A few days after W. had parted with the deeds, Mrs. Shackle, 
 conceiving that he was not attending properly to her interests, removed 
 her securities from the custody of W. ; and, discovering what had hap- 
 pened, employed another solicitor. Under his advice, she immediately 
 insisted that W. had been guilty of negligence in delivering the deeds of 
 the King's Arms Inn to Norton, when he had an order which gave him 
 a right to retain them till her demand was satisfied, and made it his duty 
 not to part with them till he had received 1500/. on her account. Her 
 demand he knew to be still unpaid, and he was bound, as her then 
 solicitor, to protect her interest to the utmost ; and she contended, there- 
 fore, that he was answerable to her for 1500/., being that portion of the 
 purchase-money which the possession of the title-deeds would have enaliled 
 her to receive. A correspondence and negotiation on the subject took 
 place ; W. consulted with counsel, who advised him that he was liable ; 
 and, towards the end of March, the terms of a compromise were agreed 
 upon. These terms were, that W. should pay to Mrs. Shackle 1480/. on 
 the 10th of April, and that she should assign to him her demand against 
 Norton's estate, together with the securities which she held for it. 
 Accordingly both parties signed an agreement to that effect ; the securities 
 were handed over to W., and he and Mrs. Shackle went to Guildhall 
 in order to prove the debt against Norton's estate, but were prevented 
 fi-om making the proof by an accidental circumstance. 
 
 W., having gotten the agreement into his possession, refused to abide 
 by it. Mrs. Shackle died ; and the bill was tiled by her personal represen- 
 tatives, in order to ha\-e the agreement deli\ered up to tliem, and performed 
 siieciKcally.
 
 310 ATTWOOD V. . [chap. Ill 
 
 Mr. llornf, and Jlr. Raiiiins, for the Plaintiff. 
 
 Mr. Ihnhi, Mr. Siigden, and Mr. Uoupell, for the Defendant. 
 
 The Defendant resisted the relief on various gi-ounds. He alleged 
 that the affi'cenient had been obtained from him by misrepresentation on 
 the part of Mre. Shackle and her professional adviser ; that she, by her 
 communications with Norton, liad waived any lien which she might other- 
 wise have had on the title-deeds in W.'s custody, and, through them, on 
 tlie produce of the premises when sold; or at all events, that she, by 
 certain subsequent dealings, had restricted her lien to a sum of 800Z. ; and 
 therefore that his liability could not exceed that amount. 
 
 These points depended entirely on the details of the evidence in the 
 cause. Upon tliat evidence the Master of the Rolls was of opinion, that 
 there had been no misrepresentation on the part of Mrs. Shackle ; and 
 that the dealings, which were relied upon as being a waiver of her claim, 
 or as restricting its amount, having taken place before she was apprised of 
 what W. had done, could in no way aflect his liability or her right 
 against him. 
 
 Another ground of defence was, that the agreement was entered into 
 without a sufficient consideration, and under a mistake of W. as to his 
 legal liabilities. 
 
 The deeds, it was said, were in W.'s hands, as executor of Mrs. Hill ;. 
 he did not hold them as a trustee for Mrs. Shackle ; he was an equitable 
 mortgagee, who, the moment his own demand was satisfied, could, without 
 any breacli of duty, deliver up the deeds to his mortgagor. The note 
 from Norton imposed on him no duty or liability ; that note was not 
 addressed to any person by name ; and it would be extravagant to hold, 
 that the mere circumstance of leaving such a scrap of paper at his office, 
 could force upon liim the most grave responsibilities towards a tliird 
 person. What though that third person happened to be one of his clients % 
 It is not part of the duty of a solicitor to become an equitable mortgagee, 
 in order the better to enable a client to obtain payment of his debt. In 
 truth, that note gave no power, created no obligation, imposed no trust. 
 It was a mere promise on the part of Norton ; an intimation of how 
 he meant to apply the purchase-money of the premises. 
 
 The Plaintiff ought to prove that Mrs. Shackle had a lien on tlie 
 property in question, and that W. was bound to make that lien effectual 
 by retaining the title-deeds. They have proved neither the one point nor 
 the other; and they cannot succeed, unless they prove both. Even, 
 therefore, if there has been no misrepresentation, it is plain that W. 
 entered into this agreement under mistake, believing himself to be liable 
 to a demand, which was in trutii altogether without sub.stance. 
 
 If there was no liability anterior to the agreement, then the agree- 
 ment was without consideration. It is true, that it is in form a mere 
 contract for the purchase at a given price of the debt due from Norton to 
 Mrs. Shackle, and of the securities for it which she held. But that was
 
 SECT. I V] ATTVVOOD ),'. . "11 
 
 not the real nature of the transaction. Tlie case which the PlaintiH's 
 make is, that tlie agreement for that pretended purchase was entered into 
 as a compromise of the liability which W. had incurred. If they do not 
 make out tlie reality of tliat liability, which was the sole consideration for 
 his undertaking to pay a large sum of money, the agreement is without 
 consideration ; and, viewed in either light, as made without consideration, 
 or as entered into under mistake, it is an agreement which a Court of 
 Equity will not lend its aid to enforce. 
 
 Tlie Master op the Rolls. 
 
 The Defendant insists that the order delivered to him in July, 1822, 
 did not impose on him an obligation not to part with the deeds relating to 
 the property which was in pledge to Mrs. Hill, witliout taking care that 
 the 1500^., which would remain after Mrs. Hill's demand was satisfied, 
 was applied in diminution of the debt due to Mrs. Shackle, and that it did 
 not sulyect him to any liability, in consequence of liis having acted in a 
 difl'erent manner. It is not necessary for the Plaintiff to make out that 
 point. It is sufficient that a bond fide claim had been made on W., in 
 consequence of his supposed negligence. He deliberates, he consults, and 
 finally, he concludes a compromise. He agrees to put an end to the claim 
 against him, by at once paying Mrs. Shackle a sum of 1480/., and he takes 
 upon himself the chance of recovering what he may out of Norton's estate, 
 by means of the securities which Mrs. Shackle held. 
 
 It is said that no sufficient consideration passed from Mrs. Shackle to 
 W. for his entering into the agreement, of which performance is now 
 sought to be enforced ; because, in point of law, the order sent by Norton 
 to W. did not amount, in the hands of the latter, who was the depositary 
 of the deeds on behalf of ]\Irs. Hill, to such an authority for retaining 
 them until Mrs. Shackle's debt was paid, as would render him liable for a 
 breach of duty in giving them up when Mrs. Hill's claims were satisfied. 
 But I do not think it necessary to decide the question with respect to the 
 effect of the delivery of the order ; because if the claim were fairly and 
 honA fide made by Mrs. Shackle against W., on the ground that he had 
 been guilty of such negligence as would entitle her to enforce a demand 
 against him in law or equity ; and if W., after due consideration, not only 
 admits his liability, but compromises the claim, and for that purpose 
 enters into an agreement ; the compromise of such a claim entered into 
 witli due delibei-ation, even if it were doubtful whether the claim was such 
 as could have been made eflectual, is a sufficient consideration, both in law 
 and in equity, for such an agreement. For that reason I do not inquire, 
 whether, before the agreement was entered into, Mrs. Shackle had or had 
 not a valid demand against the present Defendant. It is enough for me 
 to say, that here was a claim made on grounds sufficiently disclosed at the 
 time ; that, after due deliberation, W. yielded to the claim ; and that lie 
 finally compromised it, not merely by paying a sum of money which niiglit
 
 312 ALLIANCE BANK ('. BROOM. [CHAP. Ill 
 
 be deemed an equivalent for the damages which Mrs. Shackle contended 
 siie might have recovered against him, but by way of purchase from her of 
 tlie very debt whicli she had a right to prove against Norton's estate, and 
 by recei\ing from iier the securities. 
 
 The objection of want of consideration for the agreement, has no more 
 foundation than the objection which proceeded upon the Defendant's 
 alleged mistake as to his legal liability. 
 
 There was no misrepresentation on Mrs. Shackle's part, either as 
 to the nature or as to the extent of her demand ; W. had ample time, and 
 opportunity to consider duly his liability ; he did do so, acknowledged his 
 liability, and entered into this agreement. The grounds of defence have, 
 tiicicfnro, wholly failed, and I am bound to pronounce a decree for the 
 Plaiutiti' with costs. 
 
 THE ALLIANCE BANK LIMITED v. BROOM. 
 
 In Cjiancerv, Novembee 14, 21, 1864. 
 
 [Reported in 2 Drewry Jb Smale, 289.] 
 
 This case came on upon a demurrer. 
 
 It appeared from the bill that, in June, 1864, the Alliance Bank 
 opened a loan-account with the defendants, who are merchants at Liver- 
 pool, and that such loan-account was continued down to the 19th of 
 September, 1864, when there was a balance due from the defendants 
 to the bank on such loan-account to the amount of ,£22,205 l5». Id. 
 
 On the 19th of September, 1864, the plaintiffs requested the 
 defendants, Messrs. Broom, to give them some security for the amount 
 so due ; and the defendants, who stated that they were entitled to certain 
 goods, wrote to the manager of the bank the following letter : 
 
 Liverpool, 19th Sept. 1864. 
 Dear Sir, — We hand you the following particulars of produce, which 
 wc propose to hypothecate against our loan-account, and at the same time 
 undertake to pay the proceeds, as we receive them, to the credit of the 
 said account. 
 
 The letter then contained a list of goods and their values, and was 
 signed by Messrs. Broom. 
 
 In pursuance of this letter the plaintiffs, on the 20th of September, 
 1864, applied to the defendants for the warrants for delivery of the 
 goods mentioned in the letter, and the defendants promised to deliver the 
 warrants to the plaintifl's as soon as they could obtain them from the 
 warehouses.
 
 SECT. IV] ALLIANCE BANK ('. BROOM. 313 
 
 The bill stated that the defendants refused to deliver the warrants, 
 or other documents relating to the goods, to the plaintifls, and threatened 
 and intended to deliver them to other persons ; and the bill charged that 
 the plaintifls were entitled to a lien or cliarge upon the goods mentioned in 
 the letter by virtue of the agreement, and prayed for a declaration to that 
 effect. The bill also prayed that the defendants might be ordered to 
 deliver to the plaintiffs the warrants and other documents relating to the 
 title of said goods, and cause the said goods to be delivered to the 
 plaijitiffs, by way of security for the amount due to them on the loan- 
 account. Tlie bill also prayed an injunction to restrain the defendants 
 from dealing with the warrants or goods in the mean time. 
 
 To this bill the defendants filed a demurrer, on the ground that the 
 agreement contained in the letter was without consideration ; and there- 
 fore one which the court would not enforce. 
 
 Mr. Daniel and Mr. J. N. Higijins, for the defendants, in support of 
 the demurrer, contended that the agreement contained in the letter 
 was executory ; being also without consideration, the court would not 
 enforce it. The existence of a debt was no sufficient consideration to 
 support the agreement. There was a distinction between a motive and 
 a consideration, — what might be good as a motive might be bad as a 
 consideration ; and that was so in this case.. And therefore the bill, 
 which sought the specific performance of such an agreement, could not be 
 sustained. They referred to Eastwood v. Kenyoyi,^ Thomas v. Tlwmas,^ 
 Hopkins V. Logan,^ Kaye v. Button,^ Smith on Contracts,^ Addison on 
 Contracts. ° 
 
 Mr. Bevir, for the plaintiffs, in support of the bill, submitted that 
 there was a good consideration for the agreement ; namely, forbearance 
 on the part of the plaintiffs from callmg in their money. Twyne's Case.' 
 
 Mr. Daniel, in reply. 
 
 The Vice-Chancellor reserved judgment. 
 
 The Vice-Chancelloe, after stating the facts, said : — 
 The defendant demurs to the plaintiff's bill in this case, on the ground 
 that the promise to give security, which the plaintiff seeks to enforce, 
 was without any consideration, — that is in fact a nudum pactum, 
 which the court will not enforce ; and in support of this proposition it 
 is argued that the plaintiffs, so far from giving any consideration for the 
 promise, could at any time have brought an action for the payment 
 of the debt ; and that they could have done so is perfectly true. 
 
 Now, according to the facts stated in the bill, a demand was made 
 by the creditor for security ; and upon that demand a promise and 
 agreement was made by the debtor that he would give such security, 
 
 > 11 Ad. & EL 150. = 2 Q. B. 859. ' 5 M. & W. 211. 
 
 ^ 7 M. & Or. 815. •'' ii. 80. « pp. G and 296. 
 
 ■ 3 Cokfc 80 b.
 
 ;jl4 CALLISHER V. BISCHOFFSHEIM. [CHAP. Ill 
 
 jiikI tliat, although it might take some time to get the warrants, he 
 would hand theiu over to the creditor wlien lie obtained them. 
 
 It a])])ear.s to me, that when the plaintifl's demanded payment of their 
 debt, and in consefjuence of that application the defendant agreed to give 
 certain security, although there was no promise on the part of the 
 plaintifls to abstain for any certain time from suing for tlie deljt, the effect 
 was, that the plaintiffs did in effect give, and the defendant received, the 
 benefit of some degrees of forbearance, not indeed for any definite time, 
 but at all events some extent of forbearance. If, on the application for 
 security being made, the defendant had refused to give any security at all, 
 the consequence certainly would have been that the creditor would have 
 demanded payment of the debt, and have taken steps to enforce it. It is 
 very true that, at any time after the promise, tlie creditor might have 
 insisted on payment of his debt, and liave brought an action ; but the 
 circumstances necessarily involve the benefit to the debtor of a certain 
 amount of forbearance, which he would not have derived if he had not 
 made the agreement. 
 
 On this ground the demurrer must be overruled.' 
 
 CALLISHEE v. BISCHOFFSHEIM. 
 In the Queen's Bench, June 6, 1S70. 
 
 [Reported in. Law Reports, 5 Queen's Bench, 440.] 
 
 Declaration, that the plaintiff had alleged that certain moneys were 
 due and owing to him, to wit, from the Government of Honduras, and 
 from Don Carlos Gattierez, and others, and had threatened, and was 
 about to take legal proceedings against the said government and persons 
 to enforce payment of the same ; and thereupon, in consideration that the 
 plaintiff would forbear from taking such proceedings for an agreed time, 
 the defendant promised to deliver to the plaintiff certain securities, to wit, 
 bonds or debentures, called Honduras Railway Loan Bonds, for sums 
 to the amount of £600, immediately the bonds should be printed. Aver- 
 ment, that the plaintiff did not take any proceedings during the agreed 
 period, or at all ; and that all conditions had been fulfilled necessary 
 to entitle him to sue in respect of the mattei-s before stated. Breach, 
 that the defendant had not delivered to the plaintiff the bonds, or 
 any of them. 
 
 ' In Oldershaio v. Kinp, 2 H. & N. 517, (Exchequer Chamber) it was held that 
 lorbearance for a reasonable time was a sufiieieut consideration for a promise to 
 gnarantee, and that what was a reasonable time was to be considered and determined 
 with reference to the circumstances of the case. Ed
 
 SECT. IV] CALLISHER V. lilSCHOFFSHEIM. 31 5 
 
 Ple.1, that at the time of making tlie alleged agreement no moneys were 
 due and owing to the plaintiff' from the government and other persons. 
 
 Demurrer and joinder. 
 
 James, Q.C. {Rose with him), in support of the demurrer. The plea is 
 bad, and affords no answer to the declaration, which discloses a good cause 
 of action. The consideration for the plaintiff's promise or contract 
 is sufficient ; it is sufficient if the contractor, or some third person, avoids 
 some detriment or injury ; here the annoyance and expense of an action 
 are avoided. In Llewellyn v. Lletvellyn^ the declaration alleged that there 
 were disputes concerning accounts between the plaintiff and defendant, 
 and in consideration that the plaintiff would relinquish all claims the 
 defendant promised he would pay the plaintiff an annuity. Tliere was no 
 allegation that any sum was due to the plaintiff'; it miglit be that 
 the plaintiff's claim could not be sustained ; but it was held that the 
 declai-ation disclosed a sufficient consideration. 
 
 [Blackburn, J. We must assume, on this record, that the plaintiff 
 believed that he had a valid claim against the Honduras Government.] 
 
 Coolc V. Wright' is in point. There the defendant knew he was not 
 liable to satisfy the claim made by the plaintiff; but the plaintiff', bona fide 
 believing him to be personally liable, tlireatened to take proceedings, and 
 a forbearing to take those proceedings was held a good consideration for 
 the defendant compromising the claim by giving promissory notes. In 
 Wade v. Simeon' it was expressly averred in the plea that the plaintiff' 
 knew he had no cause of action, and it was therefore held good. The 
 plaintiff" has fulfilled his part of the contract, he has abstained from 
 enforcing his claim whether good or bad, and the defendant ought not to 
 be allowed to say he will not fulfil his contract. Tiie position of the 
 parties is altered, and the plaintiff may have been put to expense in 
 stopping the proceedings. The consideration is not an abandonment of an 
 unfounded claim, but a postponement of the prosecution of the suit. 
 
 Pollock, Q.C. [Joyce with him), contra. Forbearance to prosecute 
 a groundless action affords no consideration capable of supporting a 
 promise. It is admitted on the record that no money was due to the 
 plaintiff from the Honduras Government, and if the declaration and plea 
 are read together, it is clear that a cause of action does not exist. All the 
 cases are consistent with this view except Cook v. Wright' ; and that case 
 is distinguishable. There the question was not whether a sum of money 
 was due to the plaintiff, but whether it was due from the defendant 
 or another person ; whereas here the question, before the contract 
 declared on was made, was whether a sum of money was due to the 
 plaintiff from tlie Honduras Government. In Edwards v. Baugh* the 
 declaration was held bad because there was not any allegation that 
 a debt was due, but merely that a dispute existed respecting it ; and 
 
 1 3 D. & L. 318; 1.5 L. J. (Q. B.) 1. - 1 B. & S. 559; 30 L. J. (Q. B.) 321. 
 
 ^ 3 D. & L. 587 ; 2 C. B. 518. ' 11 M. & W. 611.
 
 316 CALLISHER V. BISCHOFFSHEIM. [CHAP. Ill 
 
 in Wade v. Simeon' it was lield tliat forbeiuance to prosecute a groundless 
 claim gave no benefit to the promisor, and imposed no detriment on the 
 promisee. 
 
 James, Q.C., replied. 
 
 CocKnURN, C. J. Our judgment must be for the plaintiff. No doubt it 
 must be taken that there was, in fact, no claim by the plaintiff against the 
 Honduras Government which could be prosecuted by legal proceedings to 
 a successful issue ; but this does not vitiate the contract and destroy 
 the validity of what is alleged as the consideration. The authorities 
 cleai'ly establisli that if an agreement is made to compromise a disputed 
 claim, forljearance to sue in respect of that claim is a good consideration ; 
 and whether proceedings to enforce the disputed claim have or have not 
 been instituted makes no diflerence. If the defendant's contention were 
 adopted, it would result tliat in no case of a doubtful claim could a 
 compromise be enforced. Every day a compromise is effected on the 
 ground that the party m.aking it has a chance of succeeding in it, and if 
 lie bona fide believes he has a fair chance of success, he has a reasonable 
 ground for suing, and his forbearance to sue will constitute a good 
 consideration. When such a person forbears to sue he gives up what 
 he believes to be a right of action, and the other party gets an advantage, 
 and, instead of being annoyed with an action, he escapes from the 
 vexations incident to it. The defendant's contention is unsupported 
 hy authority. 
 
 It would be another matter if a person made a claim wliich he knew to 
 be unfounded, and, by a compromise, dei-ived an advantage under it : in 
 that case his conduct would be fraudulent. If the plea had alleged that 
 the plaintiff knew lie had no real claim against the Honduras Government, 
 that would have been an answer to the action. 
 
 Blackburn, J. I am of the same opinion. The declaration, as it 
 stands, in effect states that the plaintiff, having alleged that certain moneys 
 were due to him from the Honduras Government, was about to enforce 
 payment, and the defendant suggested that the plaintiff's claim, whether 
 good or bad, should stand over. So far, the agreement was a reasonable 
 one. The plea, however, alleges that at the time of making the agreement 
 no money was due. If we are to infer that the plaintiff believed that 
 some money was due to him, his claim was honest, and the compromise of 
 that claim would be binding, and would form a good consideration, 
 although the plaintiff, if he had prosecuted his original claim, would have 
 been defeated. This case is decided by Cook v. Wright\ In that case it 
 appeared from the evidence that the defendant knew that the original 
 claim of the plaintiff was invalid, yet he was held liable, as the plaintiff 
 believed his claim to be good. The Court say = that " the real consideration 
 
 1 2 C. B. 518. ' 1 B. & S. 559, 570; 30 L. J. (Q. B.) 321, 321. 
 
 ' 1 B. & S. at p. 570; 30 L. J. (Q. B.) at p. 321.
 
 SECT, IV] I.EASK ('. SCOTT. 317 
 
 ilepentlis on the reality of tlio cUiiiu made, and tlic bona tides of the 
 compromise." If the plaintiff's claim against the Honduras Government 
 was not bona fide, this ought to have been alleged in the plea ; but no 
 such allegation appears. 
 
 Mellor, J. I am of tlie same opinion. If the plaintiff's claim 
 against the Honduras Government was fraudulent, tlie defendant ought to 
 have alleged it. 
 
 Lush, J., concurred. 
 
 Judgment for the Plaintiff. 
 
 LEASK V. SCOTT BROTHERS. 
 
 In the Court of Appeal, May 5, 1877. 
 
 [Reported in Law Reports, 2 Quceti's Bench Division, 37G.] 
 
 Interpleader action to try the right of the plaintiff as against the 
 defendants to 100 bags of nuts. 
 
 At the trial before Field, J., at the London Michaelmas sittings, 1876, 
 the following facts appeared in evidence : — On the 22nd of December, 
 1875, Geen, Stutchbury, & Co., fruit merchants in London, agreed to 
 purchase of the defendants a shipment of nuts from Naples to London by 
 the Trinidad, "reimbursement as usual," which was by acceptance at 
 three montlis on delivery of the shipping documents. On Saturday, the 
 1st of January, 1876, being prompt day, Geen & Co., being already 
 indebted to the plaintiff, their fruit broker, in between 10,000/. and 
 11,000/., Mr. Geen applied to him for a further advance of 2000/. The 
 plaintiff said, " You may have it, but you must first cover up your 
 account." Geen said that he would give him cover, and the plaintiff's 
 cashier at once handed to Geen a cheque for 2000/. On Tuesday, the 4th 
 of January, the bill of lading, dated the 2Uth of December, 1875, indorsed 
 by defendants in blank (the nuts being made deliverable to their order), 
 was handed by their agent to Geen & Co., and they at once accepted a 
 draft for the price, 224/. 16«. 2(7.; and on the ne.\t day Geen & Co. 
 handed to the plaintiff the bill of lading and other similar documents to 
 the value of about 5000/. in performance of their promise on the Saturday 
 to give the plaintiff cover. On Saturday, the 8th of January, Geen & Co. 
 stopped payment. The Trinidad arrived off Liverpool on the 3rd of 
 February, and the defendants sought to stop the nuts in transitu, the 
 plaintiff claiming them under the bill of lading. The nuts were landed, 
 warehoused, and sold, the price being held to abide the result of this 
 interpleader action.
 
 ,•118 I.KASK ('. SCOTT. [iHAP. Ill 
 
 In answer to questions by the judge, the jury found, that tlie plaintiff' 
 received the bill of lading honestly and fairly ; that valuable consideration 
 was given on the understanding of security being given; and that the 
 security given vas to secure the 2000/., and also the old account. 
 
 The learned judge, after argument, directed judgment to be entered 
 for the defendants, being of opinion that the facts of the case brought 
 it within the principle of Rodger v. Comptoir d^Escompte de Paris', 
 aliirined by tlie decision of Chartered Bank of India, <tc. v. Henderson^. 
 
 April 16, 17. WatJcin Williams, Q.C., moved to enter judgment for 
 tlie plaintiff. Geen & Co. became the lawful holders of the bill of lading 
 on it being handed to them by the defendants indorsed in blank, and on 
 their accepting the defendants' draft at three months for the price, and 
 the plaintiff" became lawful holder on it being handed to him by Geen ife 
 Co. And according to the findings of the jury, the plaintiff" was bona fide 
 transferee for valuable consideration from the lawful holder of the bill of 
 lading, and was, therefoie, legally entitled to it as against the original 
 vendor. This has been the law ever since the leading case of Lickharrnw 
 v. Mason^; and the distinction, as to past and present consideration, was 
 first taken in Rodger v. Comptoir d'Escompte de Paris', and is not to be 
 found in any other case, in the dicta of any judge, or in any text-writer. 
 Moreover, the case of Chartered Rank oj' India, d-c. v. Henderson^, before 
 the same tribunal, while it recognises the previous decision, very much 
 narrows its application, and the facts of the present case bring it within 
 the later decision. For assuming that the existing debt alone would not 
 have been sufficient consideration, being past, to give a valid title to the 
 plaintiff"; here the handing over of the bill of lading was in consequence of 
 a liinding contract made on the Saturday to give cover, which could have 
 been enforced both at law and equity. 
 
 [Lord Coleridge, C. J. Alliance Bank v. Broom* is an authority 
 that performance of the contract would have been decreed in equity.] 
 
 Moreover, although not expressed, it is clear that part of the 
 consideration for giving cover was the forbearance in not taking 
 proceedings to enforce the debt, and this is a continuing present con- 
 sideration. The distinction, however, between past and present con- 
 sideration is inconsistent with all the cases. [He then went through 
 the judgment in jBo%er v. Comptoir d'Escompte de Paris' at length, and 
 referred to Currie v. Misa^; Lempriere v. Pasley"; HoJroyd v. Marshall'; 
 Meyerstein v. Barber', citing Blackburn on Sale, pp. 297, 298 ; Marie 
 Joseph".] 
 
 ' Law Rep. 2 P. C. 303. 2 Law Eep. 5 P. C. 501. 
 
 ■■■ 2 T. E. 63; G East, 21, n. •< 2 Dr. & Sm. 289; 34 L. J. (Ch.) 2r,G. 
 
 » Law Eep. 10 Ex. 1.>S, at p. 168. « 2 T. E. 485. 
 
 ■ 10 H. L. C. 191; 33 L. .J. (Ch.) 193. « Law Eep. 2 C. P. 674. 
 
 " Law Eep. 1 P. C. 219.
 
 SECT. IV] I.EASK P. SCOTT. 319 
 
 Ji. E. U'ebater (with liiiu Murphij, Q.C.), for the defendants. [Tlie 
 .arguments for the defendants are so fully given in the judgment of tlie 
 Court that it is unnecessary to repeat them.] 
 
 ir. Williams, Q.C., was heard in reply. 
 
 Cur. adv. milt. 
 
 May 5. The judgment of the Court (Lord Coleridge, C. J., and 
 Bramwell and Brett, L.JJ.), was delivered by 
 
 Bramwell, L. J. Tlie defendants have stopped in transitu the good.s, 
 the subject of this proceeding. They have done so effectually and 
 rightfully, unless the plaintiff has obtained a title to them which cannot 
 be defeated by such stopp3,ge. Whether he has is the question. The 
 facts are few, and as follows : — Geen &, Co., the consignees of the goods, 
 were indebted to the plaintiff. On Saturday, the 1st of January, they 
 applied to the plaintiff for a further advance, which he agreed to make on 
 heing first covered. Geen & Co. promised to give him cover (not naming 
 anything in particular), and the plaintiff' advanced them a further sum of 
 2000?., the plaintiff' being content with their promise. On the following 
 Tuesday the bill of lading of the goods in question, consigned by the 
 defendants to Geen tfc Co., came to the possession of the latter, who, on 
 the following day, Wednesday, deposited it with the plaintiff in fulfilment 
 of their promise to cover him. No question turns on tlie quantity of 
 property so handed over, nor in any way as to the validity of the 
 transfer; for the jury on this have found entirely in favour of the 
 plaintiff. 
 
 This being so, the plaintiff contended that he was a bona fide holder of 
 the bill of lading for valuable consideration by transfer from the former 
 lawful holder and proprietor thereof and of the goods mentioned in it. 
 Tliis was not denied by the defendants. Their contention was that, 
 thougji the plaintiff was such holder eflectually as against Geen & Co., and 
 tlieir assignees, if they had become bankrupt, or any one claiming througli 
 or against them, except the defendants, yet they, the defendants, had not 
 lost their right to stop in transitu. That the right of stoppage in transitu 
 is available and effectual against every one, except the assignee of a bill 
 of lading for valuable consideration, and unless that valuable consideration 
 had been got by means of the bill of lading ; that, if the consideration were 
 past, it was not such a consideration, and the title gained by it was not 
 such a title as would defeat the equitable right of stoppage in transitu. 
 That such I'iglit was only defeated where there was a transfer for present 
 consideration. Tliat it was so in such case, because the consignor, or 
 stopper in transitu, had by parting with the bill of lading enabled the 
 consignee to get valuable consideration by means of it ; and so had 
 indirectly caused the giving of the consideration by the assignee of the bill 
 of lading ; but that that was not so where the consideration was past. 
 There the jjiver of the valuable consideration was not prejudiced by moans
 
 ,'}20 I-KASK l\ SCOTT. [CHAP. Ill 
 
 of tlie bill of ladiuf,'. .uul consequently there was no reason why the 
 I'liuitahle right of stoppage in transitu should be lost. 
 
 Mr. Webster, for the defendants, at first put it that the equitable 
 i-ight of tiie consignor should prevail against the equitable right of the 
 transferee of the bill of lading. But, on it being pointed out to him that 
 the title of the transferee was legal, he altered his argument to what is 
 above mentioned, viz., that the equitable right of stoppage prevailed 
 a^'ainst a legal title acquired by receiving the bill of lading for a 
 consideration, no pai-t of which was caused to be given liy the bill of 
 lading. The distinction of the two propositions is material. 
 
 In support of his argument Mr. Webster cited Rodger v. Comptoir 
 d'Escompte de Paris' before the Judicial Committee of the Privy Council. 
 We think that that case justifies his argument, and is in point. There 
 may be differences in the facts of the two cases, but the ratio decidendi 
 was clearly that advanced for the defendants in the present case. We 
 are not bound by its authority, but we need hardly say that we should 
 treat any decision of that tribunal with the greatest respect, and. rejoice if 
 we could agree with it. But we cannot. There is not a trace of such 
 distinction between cases of past and present consideration to be found in 
 the books. It is true there is no decision the other way ; but wherever 
 the rule is laid down it is laid down without qualification, viz., that a 
 transfer of a bill of lading for valuable consideration to a bona fide 
 transferee defeats the right of stoppage in transitu. It is true, no doubt, 
 that opinions must be taken secundum subjectam materiam, but it is 
 strange that no judge, no counsel, no writer ever guarded himself against 
 appearing to lay down the rule too widely by mentioning tliis qualification, 
 if he thought it existed. We cannot help saying then that not only is the 
 case a novelty, but it is a novelty opposed to what may be called the silent 
 authority of all the previous judges and writers who have dealt with the 
 subject. More than that, in Vertue v. Jewell ", where Lord Ellen borough 
 goes out of his way to say that the plaintiff was not a transferee for 
 valuable consideration so as to defeat the right of stoppage, he puts it, 
 not on the ground that the consideration was past, as was the fact, but on 
 the ground that the transferee had notice of the transferor's insolvency. 
 Further, it is noticeable that tliis point does not seem to have been 
 mentioned in Rodger v. Comptoir d'Escompte de Paris' till the reply. 
 The cases cited in the argument at the opening of counsel in that case 
 seem directed to the question of bona fides. Still further, with all respect 
 be it said, the reason given in the judgment is not satisfactory. It is 
 said', "The general rule, so clearly stated and explained by Lord St. 
 Leonards in the case of Mangles v. Dixon'', is, that the assignee of any 
 security stands in the same position as the assignor as to the equities 
 arising upon it." No doubt. But that rule does not apply here. Lord 
 
 ' Law Eep. 2 P. C. 393. = 4 Camp. 31. s Law Eep. 2 P. C. at p. 403. 
 
 * Law Rep. 2 P. C. at p. 40D. » 3 H. L. C. 702.
 
 SECT. IV] LEASK V. SCOTT. 321 
 
 St. Leonards said that in reference to a case where the title was to a chose 
 in action, an equitaljle title only, or, dropping such an expression, a riglit 
 against a person liable on a contract ; and he held that the assignee of 
 that right was in the same situation as tlie assignor. Here the plaintiff's 
 title is, as it was in Rodger v. Gomptoir d'Escompte de Paris\ a title 
 to property in ownership, and to use the old expression, a legal right. 
 
 If, besides dealing with the authorities, we look at the reason of the 
 thing, we are led, with deference, to tlie same conclusion. All the 
 arguments used by Mr. Justice Buller, in Lickharrow v. Mason', apply to 
 such a case as the one before us. Practically such a past consideration as 
 is now under discussion has always a present operation. It stays the 
 hand of the creditor. If the plaintiff had agreed on the clay the bill of 
 lading was handed to him to give a week's time, there would have been 
 a present consideration. Is it necessary there sliould be a formal agree- 
 ment in lieu of that wliich, whether it would support legal proceedings, as 
 was contended by the plaintiff, or not, was, no doubt, such an under- 
 standing that, if the plaintiff had taken proceedings against Geen & Co. 
 the day after he had received the security, he would have committed 
 a breach of faith ^ If in this case the plaintiff had bought the goods out 
 and out and been paid part of his debt with the price, the consideration 
 would have sufficed, if the transaction was not colourable. If the plaintiff 
 had said, "I cannot take this bill of lading safely as the consideratii.m 
 would be past, do it with the broker next-door and give me his clieque," 
 that would have been valid. Is it desirable to introduce such niceties 
 into commercial law? Moreover, there really always is a present con- 
 sideration. It is not necessary to consider whether specific performance 
 would be decreed as to this document which was not specified to the 
 plaintiff; but the case of Alliance Bank v. Broom^ shews that a general 
 performance would be decreed ; and certainly an action would lie for not 
 covering. Therefore the assignor, for such consideration as this, always 
 gets the benefit of performing his contract, and so saving himself from 
 a cause of action. If Geen & Co., in this particular case, had said that 
 this bill of lading was coming forward, and they would hand it to the 
 plaintiff, then value would have been obtained by means of the bill of 
 lading ; so if they had said generally that they had securities coming 
 forward and would deposit them ; and what is the difference between 
 a promise with such a statement and a promise without it? In the 
 analogous cases of goods obtained under a fraudulent contract, where the 
 vendor loses liis title if there is a transfer for value, there is no authority 
 to shew that a past value is not sufficient. 
 
 On these grounds we are unable to concur in the opinion of the 
 Judicial Committee in Rodger v. Comptoir d'Escompte de Pcu-is^ or 
 with the argument for the defendants. As to the judgment of Mi-. 
 
 ' Law Eep. 2 P. C. 393. ' 2 T. E. C3, at p. 73. 
 
 3 2 Dr. & Sm. 289; 31 L. J. (Ch.) 25G. 
 
 F. 21
 
 322 TWEDDLE ?'. ATKINSON. [CHAP. Ill 
 
 Justice Field, it is enough to say that it proceeded wholly on that case 
 and in deference to it. 
 
 We are of opinion that judgment should be reversed, and entered for 
 the plaintiff. 
 
 Judgment reversed and entered for the plaintiff. 
 
 SECTION V. 
 
 UNREAL CONSIDERATION. 
 
 TWEDDLE V. ATKINSON, Executor of GUY Deceased. 
 In the Queen's Bench, June 7, 1861. 
 
 [Reported in 1 Best (£■ Smith, 393.] 
 
 The declaration stated that the plaintiff was the son of John Tweddle, 
 deceased, and before the making of the agreement hereafter mentioned, 
 married the daughter of William Guy, deceased ; and before the said 
 marriage of the plaintift' the said William Guy, in consideration of the 
 then intended marriage, promised the plaintiff to give to his said daughter 
 a marriage portion, but the said promise was verbal, and at the time of 
 the making of the said agreement had not been performed ; and before the 
 said marriage the said John Tweddle, in consideration of the said intended 
 marriage, also verbally promised to give the plaintiff a marriage portion, 
 which promise at the time of the making of the said agreement had not 
 been performed. It then alleged that after the marriage and in the 
 lifetime of the said William Guy, and of the said John Tweddle, they, the 
 said WiUiam Guy and John Tweddle, entering into the agreement here- 
 after mentioned as a mode of giving effect to their said verbal promises ; 
 and the said William Guy also entering into the said agreement in order 
 to provide for his said daughter a marriage portion, and to procure a 
 further provision to be made by the said John Tweddle, by means of the 
 said agreement, for his said daughter, and acting for the benefit of his 
 said daughter; and the said John Tweddle also entering into the said 
 agreement in order to provide for the plaintiff a marriage portion, and to 
 procure a further provision to be made by the said William Guy, by 
 means of the said agreement, for the plaintiff, and acting for the benefit 
 of the plaintiff; they the said William Guy and John Tweddle made and
 
 SECT. V] TWEDDLE V. ATKINSON. l\2'.] 
 
 entered into an agreement in writing in the words following, that is to 
 
 say : 
 
 "High Coniscliffe, July 11th, 1S55. 
 
 " Memorandum of an agreement made this day between William Guy, 
 of &c., of the one part, and John Tweddle, of &c., of the other pai-t. 
 Whereas it is mutually agreed that the said William Guy shall and will 
 pay the sum of 200/. to William Tweddle, his son-in-law ; and the said 
 John Tweddle, father to the aforesaid William Tweddle, shall and will pay 
 the sum of 100/. to the said William Tweddle, each and severally the said 
 sums on or before the 21st day of August, 18.5.5. And it is hereby further 
 agreed by the aforesaid William Guy and the said John Tweddle that the 
 said William Tweddle has full power to sue the said parties in any Court 
 of law or equity for the aforesaid sums hereby promised and specified." 
 
 " And the plaintifl' says that afterwards and before this suit, he and 
 liis said wife, who is still living, ratified and assented to the said agreement, 
 and that he is the William Tweddle therein mentioned. And the plaintiff 
 says that the said 21st day of August, a.d. 1855, elapsed, and all things 
 have been done and happened necessary to entitle the plaintifl" to have the 
 said sum of 200/. paid by the said William Guy or his executor : yet 
 neither the said William Guy nor his executor has paid the same, 
 and the same is in arrear and unpaid, contrary to the said agreement." 
 
 Demurrer and joinder therein. 
 
 Edward James, for the defendant. — The plaLntiflf is a stranger to the 
 agreement and to the consideration as stated in the declaration, and 
 therefore cannot sue upon the contract. It is now settled that an action 
 for breach of contract must be brought by the person from whom the 
 consideration moved ; Price v. Huston'. (He was then stopped.) 
 
 Mellisli, for the plaintiff". — Admitting the general rule as stated by the 
 otlier side, there is an exception in the case of contracts made by parents 
 for the pm-pose of providing for their children. In Button and Wife v. 
 Poole^, affirmed in the Exchequer Chamber, a tenant in fee simple being 
 about to cut down timber to raise a portion for his daughter, the 
 defendant his heir-at-law, in consideration of his forbearing to fell it, 
 promised the father to pay a sum of money to the daughter, and an action 
 of assumpsit by the daughter and her husband was held to be ■well 
 brought. [WiGHTJiAN, J. In that case the promise was made before 
 marriage. In this case the promise is post nuptial, and the whole 
 consideration on both sides is between the two fathers.] The natural 
 relationship between the father and the son constituted the father an 
 agent for the son, in whose behalf and for whose benefit the contract was 
 made, and therefore the latter may maintain an action upon it. 
 [Crompton, J. Is the son so far a party to the contract that he may be 
 sued as well as sue upon it 1 Where a consideration is required there must 
 
 ' 4 B. & Ad. 433. 
 
 = 2 Lev. 210; 1 Ventr. 818. Affirmed on error in the Exch. Ch., T. Eaym. 302. 
 
 21 2
 
 324. TWEDDI.E V. ATKINSON. {CHAP. Ill 
 
 he mutuality. "Wightman, J. This contract, so far as the son is 
 concerned, is one sided.] Tlie object of the contract, which was that the 
 children should be provided for, will be accomplished if this action is 
 maintainable : whereas if the right of action remains in the father it will 
 be defeated, because the damages recovered in that action will be his 
 assets. [Crompton, J. Your argument will lead to this, that the son 
 might bring an action against the father on the ground of natural love and 
 afl'ection.] In Bonnie v. Manon' two cases are cited which support this 
 action. In Sprat v. Jyar, in the King's Bench in 1G58, one promised the 
 fatlier that, in consideration that he would give his daughter in marriage 
 with his son, he would settle so much land ; after the marriage the son 
 brought an action, and it was held maintainable. The other was the case 
 of a promise to a physician that if he did such a cure he would give such 
 a sum of money to himself and another to his daughter, and it was 
 resolved the daughter might bring assumpsit, "Which cases," says the 
 report, " the Court agreed ; " and the reason assigned as to the latter is, 
 "the nearness of the relation gives the daughter the benefit of the 
 consideration performed by her father." There is no modern case in 
 which this question has been raised upon a contract between two fathers 
 for the benefit of their children. [Wightman, J. If the father of the 
 plaintiff had paid the 100?. which he promised, might not he have sued the 
 father of the plaintiff's wife on his express promise f\ According to the old 
 cases he could not. When a father makes a contract for the benefit of his 
 
 child, the law vests the contract in the child. In Thomas v. ^ the 
 
 defendant promised to a father that in consideration that he would 
 surrender a copyhold to the defendant, the defendant would give unto his 
 two daughters 201. a-piece ; and after verdict in an action upon the case 
 brought by one of the daughters for breach of that promise, on motion for 
 arresting the judgment on the ground that the two ought to liave joined, 
 it was held that the parties had distinct interests, and so each might bring 
 an action. 
 
 Edward James was not called upon to reply. 
 
 Wightman, J. Some of the old decisions appear to support the 
 proposition that a stranger to the consideration of a contract may 
 maintain an action upon it, if he stands in such a near, relationship to the 
 party from whom the consideration proceeds, that he may be considered a 
 party to the consideration. The strongest of those cases is that cited in 
 Bourne v. 31ason' , in which it was held that the daughter of a physician 
 might maintain assumpsit upon a promise to her father to give her 
 a sum of money if he performed a certain cure. But there is no modern 
 case in which the proposition has been supported. On the contrary, it is 
 now established that no stranger to the consideration can take advantage 
 of a contract, although made for his benefit. 
 
 1 1 Ventr. 6. ' Sty. 461.
 
 SECT. V] TWEDDLE ('. ATKINSON. 325 
 
 Crompton, J. It is admitted tliat the plaintiff cannot succeed unless 
 this case is an exception to tlie modern and well established doctrine of 
 the action of assumpsit. At the time when the cases which have been 
 cited were decided the action of assumpsit was treated as an action 
 of trespass upon the case, and therefore in the nature of a tort ; and the 
 law was not settled, as it now is, that natural love and affection is not a 
 sufficient consideration for a promise upon wliich an action may be 
 maintained ; nor was it settled that the promisee cannot bring an action 
 unless the consideration for the promise moved from him. The modem 
 cases have, in effect, overruled the old decisions ; they shew that the 
 consideration must move from the party entitled to sue upon the contract. 
 It would be a monstrous proposition to say that a person was a party to 
 the contract for the purpose of suing upon it for his own advantage, 
 and not a party to it for the purpose of being sued. It is said that 
 the father in the present case was agent for the son in making the 
 contract, but that argument ought also to make the son liable upon it. I 
 am prepared to overrule the old decisions, and to hold that, by reason of 
 the principles which now govern the action of assumpsit, the present 
 action is not maintainable. 
 
 Blackburn, J. The earlier part of the declaration shews a contract 
 which might be sued on, except for the enactment in sect. 4 of the 
 Statute of Frauds, 29 Car. 2, c. 3. The declaration then sets out a new 
 contract, and the only point is whether, that contract being for the 
 benefit of the children, they can sue upon it. Mr. Mellish admits that in 
 general no action can be maintained upon a promise, unless the considera- 
 tion moves from the party to whom it is made. But he says that there is 
 an exception ; namely, that when the consideration moves from a father, 
 and the contract is for the benefit of his son, the natural love and 
 affection between the father and son gives the son the right to sue as if 
 the consideration had proceeded from himself. And Button and Wife v. 
 Poole' was cited for this. We cannot overrule a decision of the Exchequer 
 Chamber: but there is a di.stinct ground on which that case cannot l.e 
 supported. The cases upon stat. 27 El. c. 4, which have decided that, by 
 sect. 2, voluntary gifts by settlement after marriage are void against 
 subsequent purchasers for value, and are not saved by sect. 4, shew that 
 natural love and afl'ection are not a sufiicient consideration whereon an 
 action of assumpsit may be founded. 
 
 Judgment for the defendant. 
 
 I 2 Lev. 210; 1 Ventr. 318. Affirmed on error iu the Esch. Ch., T. Eaym. 302.
 
 326 EASTWOOD V. KENYON. [CHAP. Ill 
 
 EASTWOOD V. KENYON. 
 Tn the Queen's Bench, January 16, 1840. 
 
 [Reported in 11 Adulphus (0 EUis, 438.] 
 
 Assumpsit. The declaration stated, tliat one John Sutcliffe made his 
 will, and appointed plaintifl' executor thereof, and tliereby bequeathed 
 certain property in manner therein mentioned : that he afterwards 
 died without altering his will, leaving one Sarah Sutcliffe, an infant, 
 his daughter and only child and heiress at law surviving: that after 
 making the will John Sutclifle sold the property mentioned therein, 
 and purchased a piece of land upon which he erected certain cottages, 
 but the same were not completed at the time of his death ; which piece of 
 land and cottages were at the time of his death mortgaged by him ; that 
 he died intestate in respect of the same, whereupon the equity of redemp- 
 tion descended to the said infant as heiress at law : that after the death 
 of John Sutcliffe, plaintiff duly proved the will and administered to 
 the estate of the deceased : that from and after the death of John Sutcliffe 
 until the said Sarah Sutclifle came of full age, plaintiff, executor as afore- 
 said, " acted as the guardian and agent " of the said infant, and in 
 that capacity expended large sums of money in and about her maintenance 
 and education, and in and about the completion, management, and 
 necessary improvement of the said cottages and premises in which 
 the said Sarah Sutcliffe was so interested, and in paying the interest of 
 the mortgage money chargeable thereon and otherwise relative thereto, 
 the said expenditure having been made in a prudent and useful manner, 
 and having been beneficial to the interest of the said Sai-ah Sutclifle to the 
 fnll amount thereof : that the estate of John Sutcliffe deceased having 
 been insufficient to allow plaintiff to make the said payments out of it, 
 plaintiff was obliged to advance out of his own monies, and did advance, a 
 large sum, to wit 140/., for the purpose of the said expenditure; and, in 
 oi-der to reimburse himself, Avas obliged to borrow, and did borrow, the 
 said sum of one A. Blackburn, and, as a security, made his promissory 
 note for payment thereof to the said A. Blackburn or his order on demand 
 with interest ; which sum, so secured by the said promissory note, was at 
 the time of the making thereof and still is wholly due and unpaid to 
 the said A. Blackburn : that the said sum was expended by plaintiff 
 in manner aforesaid for the benefit of the said Sarah Sutclifle, who 
 received all the benefit and advantage thereof, and such expenditure was 
 useful and beneficial to her to the full amount thereof : that when the said 
 Sarah Sutcliffe came of full age she had notice of the premises, and then 
 assented to the loan so raised by plaintiff, and the security so given by 
 him, and requested plaintiff to give up to one J. Stansfield as her agent, 
 
 I
 
 SECT. V] EASTWOOD V. KENYON. 327 
 
 the control and management of the said property, and then promised the 
 phiintitf to pay and discharge tlie amount of the said note ; and tiiei-eupon 
 caused one year's interest upon the said sum of 140/. to be paid to 
 A. Bhickburn. That tliereupon plaintifl" agreed to give up, and did then 
 give up, the control and management of the property to the said agent on 
 behalf of the said Sarah Sutcliffe : that all the ser\ices of plaintifl' 
 were done and given Ijy him for the said Sarah Sutclifle, and for her 
 benelit, gratuitously and without any fee, benefit, or reward whatsoever ; 
 and the said services and expenditure were of great benefit to her, and her 
 said propeity was increased in value liy reason thereof to an amount far 
 exceeding the said 140/. That afterwards defendant intermarried with 
 the said Sarah Sutclifle, and had notice of the premises, and the accounts 
 of plaintifl" of and concerning the premises were then submitted to 
 defendant, who then examined and assented to the same, and upon such 
 accounting there was found to be due to plaintifl" a large sum of money, to 
 wit (tc, for monies so expended and borrowed by him as aforesaid ; and it 
 also then appeared, that plaintifl' was indebted to A. Blackburn in the 
 amount of the said note. That defendant, in right of his wife, had 
 and received all the benefit and advantage arising from the said services 
 and expenditure. That thereupon in consideration of the premises 
 defendant promised plaintiff" that he would pay and discharge the amount 
 of the said promissory note ; but that, although a reasonable time for 
 paying and discharging the said note had elapsed and A. Blackburn, the 
 holder thereof, was always willing to accept payment from defendant, and 
 defendant was requested by plaintiff to pay and discharge the amount 
 tliereof, defendant did not, nor would then, or at any other time pay 
 or discharge the amount &c., but wholly refused &c. 
 
 Plea : J\^on Assumpsit. 
 
 On the trial before Patteson J., at the York Spring assizes 18.38, 
 it was objected on the part of the defendant that the promise stated 
 in the declaration, and proved, was a promise to pay the debt of another 
 within the Statute of Frauds 29 Car. 2, c. 3, s. 4, and ought to have been 
 in writing ; on the other hand it was contended that such defence, 
 if availalile at all, was not admissible under the plea of noii. assumpsit. 
 Tiie learned judge was of tlie latter opinion, and the plaintiff" had a 
 verdict, subject to a motion to enter a verdict for the defendant. 
 
 CressweU, in the following term, obtained a rule nisi according to the 
 leave reserved, and also for arresting judgment on the ground that 
 the declaration shewed no consideration for the promise alleged. In 
 Trinity Vacation, 1839 ', 
 
 Alexander and W. II. Watson shewed cause. The defence is not 
 available under the general issue. [Upon this point, Buttemere v. Hayes', 
 
 ' June 19th. Before Lord Denman, C. J., Patteson, Williams, and Coleridge, J.T. 
 - 5 M. & W. 456. The same point arose in Williams v. Burgess, 10 A. & E. 499; 
 and Jones v. Flint, 10 A. & E. 753.
 
 328 EASTWOOD V. KEN YON. [CHAP. Ill 
 
 decided on the same day, was mentioned to the Court, and was considered 
 conclusive.] Tlien, the promise is not within the statute, which lequires 
 a writing only where tlie promise is "to answer for the debt, default 
 or miscarriages of another person." Here there is no other person 
 in default, but the promise is to pay the amount to the plaintiff. 
 [Patteson, J. It is rather a promise to pay Blackburn ; a promise 
 to take up the bill] In suljstance it is a promise to pay the plaintiff 
 what he is liable to pay Blackburn. No case has yet decided that a 
 promise to pay the promisee's own debt to a third person is within 
 the statute, which evidently contemplates the debt or default of third 
 persons. The same point might be made in every case of an implied 
 promise to indemnify, as where the plaintiff accepts a bill for the 
 defendant's accommodation, or where the drawer is sued on the default 
 of the acceptor. It is said by Parke, J., in Thomas v. Cook', that if the 
 plaintiff, at the request of the defendant, paid money to a third person, a 
 promise to repay need not be in writing. In Castling v. Aubert", a 
 contract to indemnify the plaintiff if he gave up a lien, was held not to be 
 within the statute. Williams v. Leper^, is to the same effect. Green v. 
 Ci'esswell* may be relied on, where a promise to indemnify the plaintiff 
 against the consequence of becoming bail for a third party was held 
 to require a writing ; but there the defendant made himself answerable for 
 the default of another, and so came exactly within the words of the 
 statute. Then, as to the consideration ; it has been distinctly held, that a 
 moral obligation ■will support an express promise. There must be 
 something done by the plaintiff at tlie defendant's request, or an act done 
 for the defendant's benefit must he i-atified by an express promise to pay ; 
 in either case, an action will lie. [Coleridge, J. How are we to know 
 the difference between an express and an implied promise on the 
 pleadings'?] After verdict an express promise must be presumed. 
 [Coleridge, J. The same question may arise on demurrer.] In Lee v. 
 Mugyeridge^, executors were held liable on a promise by the testatrix, 
 after the decease of her husband, to pay a bond made by her when undei; 
 coverture, on the express ground that she was morally bound to pay 
 it. The same doctrine was upheld in Seago v. Deane'^, Atkins v. HiW, 
 and in several other cases, cited in note to WennallY. Adneg'. A stronger 
 case of moral obligation can hardly arise than the present, where the 
 plaintiff is admitted to have been for many years the faithful guardian 
 and manager of the estate of the defendant, wliile she was under age, and 
 where the defendant and his wife have received great pecuniary benefit 
 from the plaintiff's acts. 
 
 Cresswell, contra. The case is within the words, as well as the spirit 
 and mischief of the statute. It is a promise to discharge the note. The 
 
 ' 8 B. & C. 728, 732. " 2 East, 325. 3 3 Burr. 1886. 
 
 * 10 A. & E. 453. See also Cresswell v. Wood, Id. 460. » 5 Taunt. 36. 
 
 » 4 Bing. 459. ' Cowp. 284. 8 3 b_ ^. p, 247.
 
 SECT, V] EASTWOOD V. KENYON. 329 
 
 words of the breach in tlie declaration all point at the note. If the 
 defendant had jiaid Blackburn, could it have been contended that the 
 promise was to pay the plaintiif ; and that the payment to Blackburn was 
 no answer to an action by the plaintiff 1 This is in truth a promise to 
 pay Blackburn the debt due to him from the plaintiff, and it is not the 
 less within the statute, because the promise is made to the plaintiff 
 and not to Blackburn himself, for the act does not say to whom the 
 promise is to be made. Tlie case of an accommodation acceptor, and the 
 other cases of implied promises to indemnify are not in point. They are 
 either promises to pay the defendant's own debt, or they are cases 
 of liability arising l)y operation of law, where no real promise is ever 
 made or required, and which are, therefore, not within the mischief of the 
 statute. In Williams v. Leper ^ and Castlitu/ v. Auberl^, there was a 
 purchase by the defendant from the plaintifl'. In the former, the 
 landlord's right of distress was bought ; in the latter, the plaintiff's lien 
 on certain policies. Here the plaintiff" has sold notliing to the defendant. 
 Then as to the consideration : Suppose A . gives a parol guaranty to a 
 tradesman to induce him to supply goods to another, can A. be made 
 liable on a subsequent parol promise 1 Such a construction would defeat 
 the statute ; yet the case is in principle the same as the present, and 
 the moi-al obligation much stronger. A promise may be evidence of a 
 precedent request, but has no efficacy in itself. What is it that constitutes 
 the moral obligation here ^i Not the expenditure on the estate, for 
 no duty was cast on the plaintiff to lay out any thing on it, nor had he any 
 right to interfere with the management ; and if he had, the defendant had 
 at that time no interest in it at all. If the honesty of the outlay 
 causes the moral obligation, then it is inditi'erent whether it turned 
 out profitable, or not, to the defendant or his wife. It would support 
 a promise, though tlie property had been damnified by it. If the benefit 
 constitutes the consideration, then whenever a party benefits another 
 against liis will, a subsequent promise will be a ground of action. If it 
 had appeared that the wife was liable at the time of her marriage, then 
 tlie consequent liability of the defendant might have supported his 
 promise ; but no liability of the wife is stated, nor is it said that she 
 promised in consideration of the premises. As to the agreement of the 
 plaintiff to give up the control and management of the property, he liad 
 no right to either, and therefore nothing to give up ; and if lie had, it is 
 not alleged to have been the consideration of the wife's promise. Tlie 
 doctrine of moral obligation as a ground for a promise must be limited to 
 those cases where tlie law would have given a clear right of action 
 originally, if some legal impediment had not suspended or precluded 
 the liability of the party. The ordinary instances are infancy, bank- 
 ruptcy, and the Statute of Limitations ; and these were the cases referred 
 to by Lord Mansfield when he laid down the above doctrine. As a 
 1 3 Burr. 1886. = 2 East, 325.
 
 330 EASTWOOD V. KENYON. [CHAP. Ill 
 
 genenvl rule, it cannot be supported; Littlcfield v. Shee\ The law 
 is correctly laid down and the cases explained in the note to Wennall v. 
 
 Adiiey^. 
 
 Cur. adv. vuJt. 
 
 Tn this term (January IGth), the judgment of the Court was 
 delivered by 
 
 Lord Denman, C. J. The first point in this case arose on the fourth 
 section of the Statute of Frauds, viz., whether the promise of the 
 defendant was to "answer for the debt, default, or miscarriage of 
 another person." Upon the hearing we decided, in conformity with 
 the case of Buttemere v. Hayes', that this defence might be set up under 
 the plea of tion assumpsit. 
 
 The facts were that the plaintiff was liable to Mr Blackburn on a 
 promissory note ; and the defendant, for a consideration, which may for 
 the pui-pose of the argument be taken to have been sufficient, promised the 
 plaintiff to pay and discharge the note to Blackburn. If the promise had 
 been made to Blackburn, doubtless the statute would have applied : it 
 would then have been strictly a promise to answer for the debt of another ; 
 and the argument on the part of the defendant is, tliat it is not less the 
 debt of another, because the promise is made to that other, viz., the 
 debtor, and not to the creditor, the statute not having in terms stated to 
 whom the promise, contemplated by it, is to be made. But upon 
 consideration we are of opinion that the statute applies only to promises 
 made to the person to whom another is answerable. We are not aware 
 of any case in which the point has arisen, or in which any attempt has 
 been made to put that construction upon the statute which is now sought 
 to be established, and which we think not to be the true one. 
 
 The second point arose in arrest of judgment, namely, whether the 
 declaration shewed a sufficient consideration for the promise. It stated, 
 in effect, that the plaintiff was executor under the will of the father 
 of the defendant's wife, who had died intestate as to his real estate 
 leaving the defendant's wife, an infant, his only child ; that the plaintiff 
 had voluntarily expended his money for the improvement of the real 
 estate, whilst the defendant's wife was sole and a minor; and that, to 
 reimburse himself, he had borrowed money of Blackburn to whom he had 
 given his promissory note ; that the defendant's wife, while sole, had 
 received the benefit, and, after she came of age, assented and promised 
 to pay the note, and did pay a year's interest ; that after the marriage 
 the plaintifl"s accounts were shewn to the defendant, who assented to 
 them, and it appeared that there was due to the plaintiflT a sum equal 
 to the amount of the note to Blackburn; that the defendant in right 
 
 1 2 B. & Ad. 811. 
 
 ' 3 B. & P. 247. See also the argument of tlie Attorney- General in Hairjh v. Brooks, 
 10 A. & E. 315, 316. 
 '■> 5 Mee. & W. 456. 
 
 i
 
 SECT. V] EASTWOOD V. KENYON. 331 
 
 of liis wife had received all the benefit, and, in consideration of the 
 premises, promised to pay and discharge tlie amount of the note to 
 Blackburn. 
 
 Upon motion in arrest of judgment, this promise must be taken to 
 liave been proved, and to have been an express promise, as indeed 
 it must of necessity have been, for no such implied promise in law was 
 ever heard of. It was then argued for the plaintiff that the declaration 
 disclosed a sufficient moral consideration to support the promise. 
 
 Most of the older cases on this subject are collected in a learned note 
 to the case of Wnnnall v. Ad net/', and the conclusion there arrived at 
 seems to be correct in general, "that an express promise can only revive a 
 precedent good consideration, which might have been enforced at law 
 through the medium of an implied promise, had it not been suspended by 
 some positive rule of law ; but can give no original cause of action, if the 
 obligation, on which it is founded, never could have been enforced at law, 
 though not barred by any legal maxim or statute provision." Instances 
 are given of voidable contracts, as those of infants ratified by an express 
 promise after age, and distinguished from void contracts, as of married 
 women, not capable of ratification by them when widows ; Loyd v. Lee ' ; 
 debts of bankrupts revived by subsequent promise after certificate ; and 
 similar cases. Since that time some cases have occurred upon this subject, 
 which require to be more particularly e.^amined. Barnes v. Hedley^ 
 decided that a promise to repay a sum of money, with legal interest, which 
 sum had originally been lent on usurious terms, but, in taking the account 
 of which, all usurious items had been by agreement struck out, was 
 binding. Lee v. Mugyeridge* upheld an assumpsit by a widow that her 
 executors should pay a bond given by her while a feme covert to secure 
 money then advanced to a third person at her request. On the latter 
 occasion the language of JNIansfield, C. J. and of the whole Court of 
 Common Pleas, is very large, and hardly susceptible of any limitation. It 
 is conformable to the expressions used by the Judges of this Court 
 in Cooper v. Martin^, where a stepfather was permitted to recover from the 
 son of his wife, after he had attained his full age, upon a declaration for 
 necessaries furnished to him while an infant, for which, after his full age, 
 he promised to pa^'. It is remarkable that in none of these there was any 
 allusion made to the learned note in 3 Bosanquet and Puller above 
 referred to, and which has been very generally thought to contain a 
 correct statement of the law. The case of Barnes v. Hedley' is fully con- 
 sistent with the doctrine in that note laid down. Cooper v. Martin'' also 
 when fully examined, will be found not to be inconsistent with it. 
 This last case appears to have occupied the attention of the Court much 
 
 ' 3 B. & P. 249. "^ 1 Stra. 04. 3 2 Taunt. 184. 
 
 ■* 5 Taunt. 36. On a previous suit in equity to declare the bond a charge on the 
 separate estate of the testatrix, the Master of the Rolls had refused relief. S. C. 1 V. 
 & B. 118. '' 4 East, 76.
 
 332 EASTWOOD V. KENYON. [CHAP. Ill 
 
 more in respect of the supposed statutable liability of a stepfather, wliicli 
 was denied by the Court, and in respect of wliat a court of equity would 
 liold as to a stepfather's liability, and rather to have assumed the point 
 before us. It should, however, be observed that Lord Ellenborough 
 in "ivinf his judgment says, "the plaintiff ha\ang done an act beneficial 
 for tiie defendant in his infancy, it is a good consideration for the 
 defendant's promise after he came of age. In such a case the law 
 will imply a request, and the fact of the promise has been found by the 
 jury ;" and undoubtedly the action would have lain against the defendant 
 wiiilst an infant, inasmuch as it was for necessaries furnished at his 
 request in regard to which the law raises an implied promise. The case of 
 Lee V. Muggeridge ' must however be allowed to be decidedly at variance 
 with the doctrine in the note alluded to, and is a decision of great 
 authority. It should however be observed that in that case there was an 
 actual request of the defendant during coverture, though not one binding 
 in law ; but the ground of decision there taken was also equally applicable 
 to Littlefidd \ . Shee', tried by Gaselee, J. at N. P., when that learned judge 
 held, notwithstanding, that " the defendant having been a married woman 
 when the goods were supplied, her husband was originally liable, and there 
 was no consideration for the promises declared upon." After time taken 
 for deliberation this Court refused even a rule to shew cause why the 
 nonsuit should not be set aside. Lee v. Muggeridge' was cited on 
 the motion, and was sought to be distinguished by Lord Tenterden, 
 because there the circumstances raising the consideration were set out 
 truly upon the record, but in Littlejield v. Shee the declaration stated the 
 consideration to be that the plaintiff had supplied the defendant with goods 
 at her request, wliich the plaintiff failed in pro\'ing, inasmuch as it 
 appeared that the goods were in point of law supplied to the defendant's 
 husband, and not to her. But Lord Tenterden added, that the doctrine 
 that a moral obligation is a sutScient consideration for a subsequent 
 promise is one which should be received witli some limitation. This 
 sentence, in truth, amounts to a dissent from the authority of Lee v. 
 AIuggeridge\ where the doctrine is wholly unqualified. 
 
 Tlie eminent counsel who argued for the plaintiff in Lee v. Miiggei-idge ' 
 spoke of Lord Mansfield as having considered the rule of nudum pactum 
 as too narrow, and maintained that all promises deliberately made ought 
 to be held binding. I do not find this language ascribed to him by 
 any reporter, and do not know whether we are to receive it as a 
 traditional report, or as a deduction from what he does appear to have 
 laid down. If the latter, the note to Wennall v. Adyiet/' shews the 
 deduction to be erroneous. If the former. Lord Tentei-den and this Court 
 declared that they could not adopt it in LitlUfield v. Shee \ Indeed the 
 doctrine would annihilate the necessity for any consideration at all, 
 
 1 5 Taunt. 36. = 2 B. & Ad. 811. '3 B. & P. 249.
 
 SECT. V] EASTWOOD V. KENYON. 333 
 
 inasmuch as the mere fact of giving a promise creates a moral obligation 
 to perfoi'm it. 
 
 The enforcement of such promises by law, however plausibly reconciled 
 by the desire to effect all conscientious engagements, might be attended 
 with mischievous consequences to society; one of which would be the 
 frequent preference of voluntary undertakings to claims for just debts. 
 Suits would thereby l)e multiplied, and voluntary undertakings would 
 also be multiplied, to the prejudice of real creditors. Tlie temptations of 
 executors would be much increased by the prevalence of such a doctrine, 
 and the faithful discharge of their duty be rendered more difficult. 
 
 Taking then the promise of the defendant, as stated on this record, to 
 have been an express promise, we find that the consideration for it was past 
 and executed long befoi-e, and yet it is not laid to have been at the 
 request of the defendant, nor even of his wife while sole (though if it had, 
 the case of Jlitchinson v. Ilewson^ shews that it would not have been 
 sufficient), and the declaration really discloses nothing but a benefit 
 voluntarily conferred by the plaintiff and received by the defendant, witli 
 an express promise by the defendant to pay money. 
 
 If the subsequent assent of the defendant could have amounted to a 
 ratiliabitio, the declaration should have stated the money to have been 
 expended at his request, and the ratification should have been relied on as 
 matter of evidence ; but this was obviously impossible, because the 
 defendant was in no way connected with the property or with the plaintiff, 
 when the money was expended. If the ratification of the wife wliile sole 
 ■were relied on, then a debt from her would have been shewn, and the 
 defendant could not have been charged in his own right without some 
 further consideration, as of forbearance after marriage, or something 
 of that sort ; and then another point would have arisen upon the Statute 
 of Frauds which did not arise as it was, but which might in that case have 
 been available under the plea of non assumpsit. 
 
 In holding this declaration bad because it states no consideration but a 
 past benefit not conferred at the request of the defendant, we conceive 
 that we are justified by the old common law of England. 
 
 Lampleigh v. Braithwait^ is selected by Mr Smith' as the leading case 
 on tins subject, which was there fully discussed, though not necessary to 
 the decision. Hobart, C. J. lays down that "a mere voluntary courtesy 
 will not have a consideration to uphold an assumpsit. But if that courtesy 
 were moved by a suit or request of the party that gives the assumpsit, it 
 will bind ; for the promise, though it follows, yet it is not naked, but 
 couples itself with the suit before, and the merits of the party procured l)y 
 that suit; which is the difference;" a diSerence brought fully out by 
 Hunt V. Bate*, there cited from Dyer, where a promise to indemnify the 
 plaintiff against the consequences of having bailed the defendant's servant, 
 
 J 7 T. E. .318. ' Hob. 105. ^ j Smith's Leading Cases, 67. 
 
 •• Dyer, 272 (a).
 
 SS-i HARTLEY V. PONSONBY. [CHAP. Ill 
 
 which the plaintiff had done without request of the defendant, was liekl to 
 be made witliout consideration ; but a promise to pay 20/. to plaintift; who 
 had married defendant's cousin, but at defendant's special instance, 
 was liehl liindini;. 
 
 The distinotiou is noted, and was acted upon, in Townsend v. Ilimt \ 
 and indeed in numerous old books ; while the principle of moral obligation 
 does not make its appearance till the days of Lord Mansfield, and 
 tlien under circumstances not inconsistent with this ancient doctrine when 
 properly explained. 
 
 Upon the whole, we are of opinion that the rule must be made absolute 
 to arrest the judgment. 
 
 Hule to /inter verdict for the defendant, dischmged. 
 Rule to arrest judgment, absolute'. 
 
 HARTLEY v. PONSONBY. 
 
 In the Queen's Bench, June 4, 1857. 
 
 [Reported in 7 Ellis cC Blackburn, 872.] 
 
 ■ The first count of the declaration alleged that defendant promised 
 plaintifl'to pay to plain tifi" in Liverpool 40/., provided plaintiff would assist 
 in taking the ship Mobile from the port of Port Philip in Australia 
 to Bombay in the East Indies, with a crew of nineteen hands. Averment : 
 that, before this suit, he performed all things on his part to be performed 
 to entitle him to the payment of the said sum of 40/., according to the 
 terms and true intent and meaning of the said promise of defendant ; of 
 which defendant had notice : and a reasonable time for the payment 
 thereof elapsed before this suit. Breach : that defendant had not paid 
 the same or any part thereof. 
 
 Pleas. 1. Non assumpsit. 2. To first count : That, by virtue of 
 certain ship's articles made and entered into between plaintiff and defend- 
 ant, and signed by plaintiff', and which were in. force at the times in the 
 first count mentioned, plaintiff, at the times aforesaid, was bound, if 
 required by defendant to perform, and defendant, at the said times, had a 
 right to require plaintiff to perform, the matter mentioned or referred to 
 
 1 Cro. Car. 408. 
 
 ^ The opinion ascribed to Lord Mansfield respecting the rule of nudum pactum 
 appears to be not an unreasonable deduction from the cases of Pillans v. Mierop, 
 3 Biu-r. 16G3; and IVilUamson v. Losh, reported from the paper books of Ashhnrst, J., 
 in Chitty on Bills, 75, note (.r), 9th ed. Both are commented on by the Lord C. E. 
 Skynner, in Rami v. Huphes, 7 T. E. 350, note (n). See also Evan's General View 
 of the Decisions of Lord Mansfield, vol. i. p. 422.
 
 SECT. V] HARTLF,Y ('. PONSONBY. 33o 
 
 in the said first count as tlie consideration for the supposed promise ; and 
 tliere was no consideration for defendant's making or performing the 
 supposed promise. 
 
 Issues on these pleas. 
 
 On the trial, before Erie, J., at the London Sittings after last Hilary 
 Term, it appeared that the defendant was captain of The Mobile, a 
 ship of 1045 tons register. The plaintiff was a mariner in the ship. 
 The mariners, by their articles, agreed to serve on board the ship "on 
 a voyage from Liverpool to Port Philip, from thence (if required) 
 to any ports and places in the Pacific Ocean, Indian or Cliina Seas, 
 or wherein freight may ofler, with liberty to call at a port for orders, and 
 until her return to a final port of discharge in the United Kingdom : or 
 for a tenn not to exceed three years." The wages of the plaintifi" were to 
 be 3/. per month. The proper complement of men was thirty six. The 
 three years would expire in July 185.5. The ship left Liverpool, and 
 reached Port Philip in Australia on 9th October, 1852. While she was at 
 Port Philip, seventeen of the crew refused to work, and were sent to 
 prison. Among the remaining nineteen, there were only four or five able 
 seamen. The master proposed to sail for Bombay ; and, to induce the 
 remaining crew to take the ship to Bombay, he promised to pay to some of 
 them a sum in addition to their wages : and he gave to the plaintiflT a 
 written promise, wliich was as follows. 
 
 "Port Philip, 18 October, 1852. 
 "I promise to pay, in Liverpool, to Robert Hartley the sum of forty 
 pounds sterling, provided he assist in taking ship Mobile from this port to 
 Bombay with a crew of nineteen hands. 
 
 " As witness my hand." 
 (Signed) "Henry Ponsonby." 
 
 A similar note was given to eight other seamen. Contradictory 
 evidence was given as to what passed between the defendant and the 
 seamen at the time of this agreement being made, and as to the facility of 
 hiring fresh seamen at Port Philip. The ship set sail for Bombay, where 
 she arrived on 31st December, 1852. She encountered much rough weather 
 on the voyage, in consequence of which, and of the shortness of hands, 
 extraordinary labour fell upon the crew. At Bombay additional hands 
 were taken on board The Mobile sailed for Liverpool on llth February, 
 1853, and arrived there on 14th June, 1853. The owners and the master 
 refused to pay the seamen more than the wages originally contracted for : 
 and this action was brousrht against the master for the 40^. Evidence 
 was given as to the unfitness of so small a crew as nineteen to navigate 
 the ship. The learned judge put three questions to the jury. First : 
 Whether the defendant made the agreement voluntarily ; to which the 
 jury answered that lie did so, and not by coercion ; and that this was for 
 the best interests of the owners. Secondly : whether the defendant could,
 
 336 HARTLEY V. PONSONBY. [CHAP. Ill 
 
 by reasonable exertions, obtain more hands at Port Philip : to which the 
 jury answered that he could not have done so at a reasonable price. 
 Thirdly : whether it was unreasonable or unsafe to proceed on the voyage 
 to Bombay with so few hands : to whicli the jury answered tliat they 
 considered it unreasonable for a vessel of 1045 tons to proceed on that 
 voyage with only nineteen hands. His Lordship then directed a verdict 
 for tlie plaintifl', reserving leave to move to enter a verdict for the 
 defendant. 
 
 Knowles, in last Easter Term, obtained a rule to shew cause why 
 a verdict should not be entered for the defendant, " on the ground that 
 the finding of the jury amounted to a verdict for the defendant; or why 
 a new trial should not be had between the parties, on the ground that the 
 evidence given at the trial shewed that the plaintifl" was not entitled to 
 recover." 
 
 Hugh Hill and C. Milward now shewed cause. It appears that the 
 captain, at the time when he made the contract, was striving to persuade 
 the crew to undertake a risk which they were not bound to undertake : a 
 sufficient consideration therefore arises from their undertaking it. It is 
 undoubtedly true that, if an irremediable emergency arises in the coui'se 
 of a voyage, as, for instance, if a large part of the crew are washed over- 
 board, the crew on board are bound to perform so much more of their 
 ordinary duty as may have become necessary for the completion of the 
 voyage ; and a promise to pay them for tlie performance of such extra- 
 ordinary duty would be without consideration, or contrary to the policy 
 of the law. But that rule is inapplicable to a case when a British ship is 
 in a British harbour, and, for want of a sufficient number of hands, is in 
 fact unseaworthy. A refusal to put to sea in an unseaworthy ship is no 
 desertion of the ship; that was ruled at Nisi Prius by Crowder, J. in a case 
 of Davidson v. Todliunter '. So, if a master, by unwarrantable severity, 
 compel a seaman to quit the ship ; Limland v. Stephens ^, Edward v. 
 Trevellick^. So, if the master do not supply the seamen with provisions; 
 The Castilia {Stewart) ' ; or if he alter the mariners' contract in respect of 
 the voyage to be performed ; The Eliza {Ireland) ^ The only question 
 here is whether there was an irremediable emergency. Now there is 
 nothing to shew that, by waiting a reasonable time, a sufficiency of hands 
 might not liave been procured. The captain himself proposed the extra 
 pay ; which at any rate shews his view of the obligation of the seamen. 
 
 Knowles and Aspland, contra. The agreement of the captain cannot 
 be considered to have been voluntary : the jury have indeed found that it 
 was ; which may be true in a vague and popular sense of the word : but, 
 legally speaking, the refusal of the crew to proceed was a compulsion. 
 [Coleridge, J. It should seem that, if the circumstances excused the 
 crew from going to sea, they also excused the captain from going.] The 
 
 ' Liverpool Summer Assizes, 1855. ^ 3 Esp. 209. ^ 4 e. i& B. 59. 
 
 ^ 1 Hag. Kep. Adm. 59. = 1 Hag. Eep. Adm. 182.
 
 SECT. V] HARTLEY v. PONSONBY. 8.S7 
 
 case is like Harris v. Carter ', where it was held tliat a seaman was not 
 relieved from his duty, so as to enable him to make a fresh contract, by 
 the desertion or discharge of some of the hands. [C. Mihrard. There the 
 plaintifT failed because it could not be shewn that the ship liad become 
 unseaworthy.] Here no more appears than that the desertion imposed 
 additional labour on those who remained. Harris v. Watson^ is an 
 authoi'ity for the defendant ; there the action was against the captain, as 
 here. In The EH~a (Ireland)'^ the original contract was put an end to by 
 the master. But in ?7te Araminta {Ferau)*, where, upon some of the crew 
 deserting at Geelong in Australia, the captain proposed to the remaining 
 crew that they should take the ship on, she being then short-handed, for 
 additional wages, to which they assented, it was held that such additional 
 wages could not be contracted for, and tliat, if they were paid, they 
 might be deducted from the wages due on the original contract. 
 
 Lord Campbell, C. J. I think that this verdict should stand. The 
 answer given by the jury to the third question imports to my mind that 
 for the ship to go to sea with so few hands was dangerous to life. If so, 
 it was not incumbent on the plaintiff to perform the work ; and he was in 
 the condition of a free man. There was therefore a consideration for the 
 contract ; and the captain made it without coercion. This is tlierefore a 
 voluntary agreement upon sufficient consideration. This decision will not 
 conflict with any fonuer decisions. In The Araminta (Ferati)^ Dr. Lush- 
 ington says : "I do not wish it to be inferred from anything I now say, 
 that mariners, having completed the voyage outwards, are compellable to 
 make the return voyage when the number of the crew is so small that risk 
 of life may be incurred." In Harris v. Carter'' there was no such risk. 
 As to the weight of evidence, the evidence was conflicting : but my 
 brother Erie is not dissatisfied with the verdict. 
 
 Coleridge, J. I am of the same opinion, and for the same reasons. I 
 understand the finding of the jury to be, that the ship was unseaworthy ; 
 and that, owing to the excessive labour which would be imposed, it was 
 not reasonable to require the mariners to go to sea. If they were not 
 bound to go, they were free to make a new contract : and the master was 
 justified in hiring them on the best terms he could make. It may be that 
 the plaintitF took advantage of his position to make a hard bargain ; but 
 there was no duress. 
 
 Erle, J. I am of the same opinion. I was deeply impressed with 
 the consequence of not holding the plaintiff Kable to perform his original 
 engagement. But there is a point of danger at which it becomes unrea- 
 sonable for mariners to be required to go on. That is a question for a 
 
 1 3 E. & B. 559. See Stllk v. Mojrick, 2 Campb. 317. ^ i pgalie's N. P. C. 72. 
 3 1 Hag. Eep. Adm. 182. * 1 Spinks' Ecc. & Adm. Kep. 22i. 
 
 5 1 SpinUs' Ecc. & Adm. Eep. 221). « 3 E. & B. 559. 
 
 F. 22
 
 :JS8 PlNNKl/s CASE. [chap, IT! 
 
 jury. The mariners, not being bound to go on, were to all intents and 
 purposes free, and might make the best contract they could. 
 
 Crompton, J. The jury have found that this was a free bargain. As 
 regards public policy, it would be very dangerous to lay down that, under 
 all circumstances and at any risk of life, seamen are bound to proceed on 
 a voyage. The jury have found in this case (and, I think, upon the 
 evidence, correctly,) that it was not reasonable to require tlie seamen to 
 go on. Where, from a ship being short-handed, it would be unsafe for 
 the seamen to go to sea, they become free to make any new contract that 
 they like. 
 
 Rule discharged. 
 
 PINNEL'S CASE. 
 In the Common Pleas, Trinity Term, 1602. 
 
 [Reported in 5 Coke's Reports, 117.] 
 
 PiNNEL brought an action of debt on a bond against Cole of £16 for 
 payment of £8 10s. the lltli day of Nov. 1600. The Defendant pleaded 
 that he at the instance of the Plaintiif, before the said day, scilicet, 1 
 Octoh. Anno 44 apud W. solvit querenti £5 2s. 2(7., q^ms quidem £5 2s. 2d. 
 the Plaintiff accepted in full satisfaction of the £S 10s. And it was 
 resolved by the whole Court, that payment of a lesser sum on the day in 
 satisfaction of a greater cannot be in satisfaction for the whole, because it 
 appears to the Judges that by no possibility a lesser sum can be a 
 satisfaction to the Plaintiff for a greater sum. But the gift of a horse, 
 hawk, or robe, ifcc. in satisfaction is good. For it shall be intended that a 
 horse, hawk, or roVje, &c. might be more beneficial to the Plaintiff than the 
 money, in respect of some circumstance, or otherwise the Plaintiff would 
 not have accepted of it in satisfaction. But when the whole sum is due, 
 by no intendment the acceptance of parcel can be a satisfaction to the 
 Plaintiff. But in the case at Bar it was resolved, that the payment and 
 acceptance of parcel before the day in satisfaction of the whole would be a 
 good satisfaction in regard of circumstance of time ; for peradventure 
 parcel of it before the day would be more beneficial to him than the whole 
 at the day, and the value of the satisfaction is not material. So if I am 
 bound in £20 to pay you £10 at Westminster, and you request me to pay 
 you £5 at the day at York, and you will accept it in full satisfaction of 
 the whole £10 it is a good satisfaction for the whole : for the expenses to 
 pay it at York is sufficient satisfaction. But in this case the Plaintiff had 
 judgment for the insufficient pleading ; for he did not plead that he had
 
 SECT. V] GODDARD V. o'BRIEN. 339 
 
 paid the £5 2s. 2J. in full satisfaction (as by the law he ought) but 
 pleaded the payment of part generally ; and that the Plaintiff accepted it 
 in full satisfaction. And always the manner of the tender and of the 
 payment shall be directed by him who made the tender, and not by him 
 who accepts it. And for this cause judgment was given for the Plaintiff. 
 
 See reader 26 H. 6, Barre 37, in debt on a bond of £10 the Defendant 
 pleaded that one F. was bound by the said deed with him, and each in the 
 whole, and that the Plaintiff had made an acquittance to F., bearing date 
 before the obligation and delivered after, by which acquittance he did 
 acknowledge himself to be paid 20 shillings in full satisfaction of the £10. 
 And it was adjudged a good bar ; for if a man acknowledges himself to be 
 satisfied by deed, it is a good bar, without anything received. 
 
 GODDARD AND SON v. O'BRIEN. 
 
 In the High Court of Justice, March 27, 1882. 
 
 [Eeported in Laxo Reports, 9 Queen's Bench Division, 37.] 
 
 Case stated by the Judge of the Southwark County Court. 
 
 1. The action is brought to recover amongst other items, 251. 7s. 9</., 
 balance of account for goods sold and delivered between the 6th of May, 
 1879, and the 26th of April, 1880. 
 
 2. On the 16th of August, 1880, the defendant was indebted to the 
 plaintiffs in the sum of 125^. 7s. 9d. for billiard table slates sold and 
 delivered by them to him. On that day Mr. Newitt, a member of the 
 plaintiffs' timi met the defendant and agreed to accept the sum of 100?. in 
 discharge of the said sum of 1251. 7s. dd. The defendant thereupon gave 
 to the plaintiffs a cheque for 100?. payable on demand, and the plaintiffs 
 gave him a receipt in the following form, — "Received the sum of 100?. by 
 cheque, which is to be in settlement of account of 125/. 7s. 9t/., on said 
 cheque being honoured. August 16th, 1880." The cheque was duly 
 honoured. There was no consideration given by the defendant or received 
 by the plaintiff's in satisfaction of the said sum of 125?. 7s. 9(/., other than 
 the cheque for 100?. 
 
 5. The action was tried on the 2nd of December, 1881, and judgment 
 was given for the defendant on the 12th of January, 1882; the judge 
 holding that the payment to and acceptance by the plaintiffs of the 
 cheque for 100?. in settlement of their claim for 125?. 7s. dd. was a good 
 accord and satisfaction, by reason of the cheque being a negotiable 
 security, although the payment of 100?. in cash would not have been a 
 good accord and satisfaction. 
 
 '1^ S)
 
 840 GODDARD V. O'BRIEN. [CHAP. Ill 
 
 Tlie questions for the opinion of the Court were, — first, whether t)ie 
 payment by the defendant to the plaintiffs of the cheque for 100^. in 
 settlement of their delit of 1 25/. 7s. 9d. was a good accord and satisfaction 
 of the wliole of the plaintiffs' debt, — secondly, whether the plaintiffs were 
 entitled to judgment for the 251. Is. dd. 
 
 Bronn, for the plaintiffs. This case falls within the rule laid down by 
 Pratt, C. J., in Cumber v. Wane ', that a debt is not satisfied by the 
 receipt of a security of equal degree for a smaller sum. To make it enure 
 as a satisfaction, there must be a collateral agreement that the lesser 
 amount shall be received in satisfaction of the larger. The cheque here 
 was not a negotiable instrument, nor was it received as such ; it was 
 accepted as cash conditionally on its being duly honoured, as appears from 
 the form of the receipt. The reason for the distinction between a 
 payment in cash and a payment by a negotiable security is clearly stated 
 by Alderson, B., in Sihree v. Tripp-; "It is undoubtedly true that 
 payment of a portion of a liquidated demand in the same manner as the 
 whole liquidated demand ought to be paid is payment only in part, 
 because it is not one bargain, but two, viz. payment in part and an 
 agreement, without consideration, to give up the residue. If for money 
 you give a negotiable security, you pay it in a different way. The 
 security may be worth more or less : it is of uncertain value." And 
 Parke, B., says' : " It is clear, if the claim be a liquidated and 
 ascertained sum, payment of part cannot be satisfaction of the whole. If 
 the contract be by bond or covenant, it can be determined only by 
 something of an equal or higher value : but, upon a mere simple contract, 
 it is clear that the debtor may give anything of inferior value in satisfac- 
 tion of the sum due, provided it be not part of the sum itself." And 
 further on : " Again, a sum of money payable at a different time is a good 
 satisfaction of a larger sum payable at a future day : Com. Dig. Accord. 
 (B. 2). In the present case (supposing it a liquidated demand), the 
 satisfaction is by giving a different thing, not part of the sum itself, 
 having different properties. It may be of equal value, but that we cannot 
 enter into ; it is suflicient that the parties have so agreed. The case of 
 Andrew v. Boughey'^ is an authority in support of this view." 
 
 [HuDDLESTON, B. Sibree v. Tripp^, if it does not overrule, is entirely 
 inconsistent with Cumber v. Wane\~\ 
 
 This case is quite beside Sibree v. Tripj)''. There, there was a distinct 
 consideration for the accord besides the giving of the new promissory 
 notes and the acceptance of them by the defendant, viz. the putting an 
 end to litigation between the parties. Here, the finding of the judge in 
 par. 4 of the case is, that it was the money and not the cheque that was 
 accepted in satisfaction. It was a conditional payment ; and there was 
 
 ' Str. 426. = 15 M. & W. 23, 37; 15 L. J. (Ex.) 348. 
 
 ' 15 M. & W. at p. 33. ■• Dyer, 75. n. 
 
 ' 15 M. & W. 23.
 
 SECT. V] CODDARD V. o'bRIEX. 341 
 
 no consideration for the abandonment of the excess. The ruling was 
 therefore wrong. 
 
 Woodwai-d, for the defendant, was not heard. 
 
 Grove, J. I am of opinion that the decision of the county court judge 
 was riglit. The difficulty arose from the rule laid down in Cumber v. 
 Wane\ But that doctrine has been much qualified, and I am not sure 
 that it has not been overruled. In Sibree v. Tripp' the judgments of 
 Parke and Alderson, BB., are strong expressions of a contrary opinion. 
 That case, in which it was held that the acceptance of a negotiable 
 security for a smaller amount may be in law a satisfaction of a debt of a 
 greater amount, is a direct authority that the giving of a negotiable 
 security is not within the rule of Cumber v. Wane\ That was a just and 
 proper decision, and must govern this case. It is said that part of the 
 consideration there was the putting an end to litigation between the 
 parties. Non constat that there was not a stoppage of litigation here. 
 It is further said that the acceptance of tlie cheque here was conditional 
 only. Possibly that miglit make the consideration of less value. To say 
 that you may receive something which is not money, — a chattel, for 
 instance, of inferior value, — but that you cannot receive money, is to my 
 mind a very singular state of the law. I cannot see why the saaie 
 reasoning should not apply to a chattel as to money. It is enough, how- 
 ever, to say that I think the decision of the county court judge was right. 
 
 HuDDLESTON, B. I am of the same opinion, and upon the ground 
 upon which the county court judge decided this case, \'iz. that there was a 
 good accord and satisfaction by reason of the cheque being a negotiable 
 security. The doctrine of Cumber v. Wane', if not actually overruled, 
 has been very much qualified. In the notes to that case in the 8th 
 edition of Smith's Leading Cases, at p. 363, it is said : "In Sibree v. 
 Tripp', the case of Cumber v. Wane' was much observed upon, and the 
 decision qualified to this extent, that a negotiable security may operate, if 
 so given and taken, in satisfaction of a debt of greater amount ; the 
 circumstance of negotiability making it in fact a difi'erent thing and more 
 advantageous than the original debt, which was not negotiable." Tlio 
 rule cannot be better stated than it is in the same note, at p. 360 : "The 
 general doctrine in Cumber v. Wane', and the reason of all the exceptions 
 and distinctions which have been engrafted on it, may perhaps be summed 
 up as follows, viz. that a creditor cannot Innd himself by a simple 
 agreement to accept a smaller sum in lieu of an ascertained debt of larger 
 amount, such an agreement being nudum pactum. But, if there be any 
 benefit, or even any legal possibility of benefit, to the creditor thrown in, 
 that additional weight will turn the scale, and render the consideration 
 sufficient to support the agreement." For these reasons, I am of opinion 
 that this appeal must be dismissed, with costs. 
 
 Judgment for the defeivdant. 
 ' Str. 426. » 1.5 M. & W. 23. ^ 1.5 M. & W. 26.
 
 ;;42 FITCH I'. SUTTON. [CHAP. Ill 
 
 FITCH V. SUTTON. 
 In the King's Bench, June 4, 1804. 
 
 [Reported in 5 East, 230.] 
 
 This was an action of indebitatus assumpsit for goods sold and de- 
 livered. Plea, non assumpsit. At the trial before Heath, J. at the last 
 Clielmsford assizes it was proved that the defendant was, prior to his 
 insolvency, indebted to tlie plaintiff in ^01. for goods sold and delivered. 
 Tliat in consequence of liis insolvency tlie defendant compounded with all 
 his creditors, and paid them 7s. in the pound, and at tlie time of sucli 
 payment to the plaintiff promised him to pay him the residue of his debt 
 when he sliould be of ability so to do ; which he was proved to have been 
 before the action brought. On the other hand, the defendant produced a 
 receipt signed by the plaintiff, and dated 29th of March, 1802, for a com- 
 position of 7s. in the pound for his debt of 501., whicli he acknowledged to 
 be in full of all claims and demands from the beginning of the world to 
 that day : whicli receipt it was insisted was either a discliarge of the 
 promise, or otherwise that the promise itself was void, as having been 
 made in fraud of tlie other creditors. But the plaintiff's counsel con- 
 tended that the acceptance by a creditor of a less sum in satisfaction of a 
 greater was no discharge of the debt, unless it were by deed ; and they 
 relied on the ease of Eeathcote v. Crookshanhs '. The learned Judge how- 
 ever, not having the case before him, directed the jury to find for the 
 defendant, and saved tlie point for the plaintiff, if the authority should be 
 found to support him. A rule nisi was accordingly obtained by Shepherd, 
 Serjt. for setting aside the verdict, and having a new trial ; against which 
 Best, Serjt. now shewed cause, and admitting that accord without satis- 
 faction was no defence to an antecedent demand, endeavoured to distinguish 
 this from the case of Ileathcote v. Crookshnnks, because there tlie composition 
 agreed to be taken at one time by the creditor was afterwards refused to 
 be accepted by him ; it was accord without satisfaction ; and the plea there 
 only stated a tender and refusal : whereas here the composition was 
 actually accepted by tlie plaintiff in satisfaction of his wliole demand. 
 But if that were otherwise, the plaintiff ought not to have declared upon 
 the old cause of action for goods sold and delivered, which was done away 
 by the receipt given in consideration of the composition received and the 
 new promise ; but lie should have declared specially upon such new agree- 
 ment, which was conditional for the payment of the residue when the 
 defendant should be of ability. And he cited Kyiight v. Cox ^ where the 
 creditor having accepted a composition and signed a release to the defend- 
 ant, who in consideration thereof promised to pay him tlie entire debt ; it 
 
 1 2 Term. Kep. 24. 
 
 - Before Pemberton, C. J., in Sussex, 1682. Bull. N. V. l.'i.?. 
 
 I 
 I
 
 SECT. V] GOOD U. CHEESMAX. 3-i3 
 
 was holden to be a good defence on non assumpsit for tlie original cause of 
 action, wliieli was for goods sold and delivered, and tliat the plaintiff 
 ought to have declared specially upon the special promise. 
 
 Lord Ellenborouoh, C. J. In the last-mentioned case the original 
 contract was extinguished by the release : but it cannot be pretended that 
 a receipt of part only, though expressed to be in full of all demands, must 
 have the same operation as a release. It is impossible to contend that 
 acceptance of \'il. 10«. is an extinguishment of a debt of 501. There must 
 be some consideration for the relinquishment of the residue ; something 
 collateral, to sliew a possibility of benefit to the party relinquishing his 
 further claim, otherwise tlie agreement is nudum pactum. But the mere 
 promise to pay the rest when of ability put the plaintiff in no better condi- 
 tion than he was before. It was expressly determined in Cumber v. TTane' 
 that acceptance of a security for a lesser sum cannot be pleaded in satis- 
 faction of a similar security for a greater. And though that case was 
 said by me in argument, in Heathcote v. Crookshanks, to have been denied 
 to be law ; and in confirmation of that Mr. Justice Buller afterwards referred 
 to a case, (stated to be that of Hardcastle v. Howard, H. 26 Geo. 3) ; yet 
 I cannot find any case of that sort, and none has been now referred to : on 
 the contrary, the decision in Cumber v. Wmie is directly supported by the 
 authority of Pinnel's case ', which never appears to have been questioned. 
 
 The other Judges concurred ; and Lawrence, J. referred to Co. Lit. 
 212, h. and to Adams v. Tapling^, as confirmatory of the same doctrine: 
 in the former of wliich it is laid down, that " where the condition is for 
 payment of 201. the oliligor or feoffor cannot at the time appointed pay a 
 lesser sum in satisfaction of the whole, because it is apparent that a lesser 
 sum cannot be a satisfaction of a greater. But if the obligee or feoffee do 
 at the day receive part, and thereof make an acquittance under his seal in 
 full satisfaction of the whole, it is sufficient, by reason the deed amounteth 
 to an acquittance of the whole. If the obligor or lessor pay a lesser sum 
 either before the day or at another place than is limited by the condition, 
 and the obligee or feoffee receiveth it, this is a good satisfaction." 
 
 Ride absolute. 
 
 GOOD V. CHEESMAN. 
 In tue King's Bench, May 4, 1831. 
 
 [Hcported in 2 Barnewall ct Adolphus, 328.] 
 
 Assumpsit by the plaintiff as drawer against the defendant as acceptor 
 of two bills of exchange. Plea, the general issue. At the trial before 
 ' 1 Stra. 426. = 5 Rep. 117. ' 4 Mud. 88.
 
 34-4 GOOD V. CHEESMAN. [CHAP. Ill 
 
 Lord Tenterden, C. J., at tlie sittings in London cafter Trinity term 1830, 
 it was proved, on behalf of tlie defendant, that after the l>ills became due, 
 and before the commencement of this action, the plaintiff' and three other 
 creditors of the defendant met together, in consequence of a communica- 
 tion from him, and signed the following memorandum : — " Whereas 
 AVilliam Cheesman of Portsea, brewer, is indebted to us for goods sold 
 and delivered, and being unable to make an immediate payment thereof, 
 we have agreed to accept payment of the same by his covenanting and 
 a"reeinf to pay to a trustee of our nomination one third of his annual 
 income, and executing a warrant of attorney as a collateral security until 
 payment thereof. As witness our hands tliis 31st of October, 1829." It 
 did not appear whether or not the defendant was present wlien this paper 
 was signed, nor did he ever sign it ; but it was in his possession at the 
 time of the trial, and he had procured it to be stamped. At the time of 
 the signature, the defendant had other creditors than the four above 
 mentioned, and particularly one Gloge, to whom he had given a warrant 
 of attorney, on which judgment had been entered up ; and it was agreed, 
 at the meeting of the 31st of October, that if Gloge would come into the 
 arrangement there made, an additional 201. per annum should be set apart 
 by tlie defendant out of his income. The defendant, on the 16th of 
 November, 1829, wrote to the plaintiff" as follows: — "If you should see 
 Mr. Wooldridge " (one of tlie creditors who signed) " to-day, I should be 
 glad if you would endeavour to be at my house any noon tliat you may be 
 down, as there is an objection to the arrangement by Mr. Gloge, the 
 particulars of which I will e.^plain when I see you. I am sorry to be so 
 troublesome ; but, of course, I am anxious the thing should be settled." 
 Gloge never acceded to the agreement, nor was any trustee ever nominated, 
 or covenant entered into, or warrant of attorney executed, as therein 
 mentioned. The bills of exchange continuing wholly unpaid, this action 
 was commenced. The Lord Chief Justice left it to the jury, as the only 
 question of fact in the case, whether the agreement entered into by the 
 four creditors was conditional only, depending on Gloge's assent, or 
 absolute ; in the latter case, he was of opinion that the defendant was 
 entitled to a verdict. The jury found for tlie defendant, but leave was 
 gi\en to move to enter a verdict for the plaintiff'. A rule nisi having been 
 obtained accordingly, 
 
 Scotland now shewed cause. Tlie objection taken is, that the supposed 
 agreement for forbearance in this case is an accord without satisfaction ; 
 that tlie consideration for the plaintiff''s alleged promise to give time and 
 take his debt by instalments having altogetlier failed, his engagement to 
 that effect is no answer to the present action. But this is not a case of 
 accord, strictly speaking ; nor is it to be governed by the rigid technical 
 rules applicable to that subject. It is the substitution of a new contract, 
 by wliich the creditors who are parties to it agree to suspend the remedy 
 for the recovery of their respective demands. Such agreements have been
 
 SECT. V] GOOD v. CHEESMAN. 345 
 
 supported in modern cases ; and tliere is a sufficient consideration ; for 
 wliere several creditors join in an undertaking of this kind, it is a 
 good consideration to each that the rest subscribe, and, in so doing, 
 give up a part of their present riglits for the general advantage : and 
 every one is bound unless lie can shew that the debtor has refused 
 to fulfil the agreement. Bootlihey v. Soivden^. Here the first act in 
 fulfilment of the contract, namely, the nomination of a trustee, was 
 to be performed by the creditors ; and this, at all events, ought to 
 have been done before they could consider themselves as remitted to 
 their former rights by any failure on the part of the debtor. Tatlock 
 V. Siiiith^. But no such failure has in fact been shewn ; for the 
 defendant's letter, which was read at the trial on behalf of the plaintiff 
 to prove that tlie defendant had abandoned tlie contract, proves tlie 
 contrary. The ground on which a creditor, having joined with others 
 in admitting the debtor to a composition, is precluded from afterwards 
 suing him, is the fraud which would thereby be practised on the rest 
 of the creditors ; Butler v. Rliodes^, Wood v. Roberts*. Tlie same 
 principle may be deduced from Cockshott v. Bennett^, and Steinman v. 
 Magnus^. It is true, in tlie present case, the agreement was not signed 
 by the defendant ; but his adoption of it is shewn by his subsequent 
 letter, and by his procuring the paper to be stamjjed. 
 
 Follett, contra. The main answer to this defence is, that the accord, 
 if any, was without satisfaction, and the defendant was never released. 
 The agreement of the four creditors was altogether executory, and nothing 
 was done upon it : there is no ground, therefore, for arguing, as in 
 some of the cases cited, that the plaintiff has induced others to join 
 him in an act, from the consequence of which lie now seeks to relieve 
 himself individually. None of the creditors were bound unless the 
 agreement was carried into effect. When accord and satisfaction are 
 pleaded, it is quite usual to traverse the averment of acceptance ; and this 
 is a complete answer to the plea. Here no acceptance had, in fact, taken 
 place before the action was brought ; the creditors, therefore, were not 
 bound ; and while a bargain is in fieri any party may retract, if he 
 has not as yet altered the situation of third persons. Where third 
 parties are not affected, a creditor, agreeing by parol to take a less 
 sum than his entire debt, is not thereby precluded from afterwards 
 suing for the whole. In lleathcote v. Crooksluinks' it was held that 
 such an agreement among the creditors, not having been followed by 
 actual acceptance, was not obligatory. [Littledale, J. It was observed 
 there by BuUer, J. that no fund was appropriated for the payment 
 of the debt ; and that if the debtor had assigned over all his effects 
 to a trustee for distribution among the creditors, that would liave been 
 a good consideration for a promise of forbearance. Parke, J. It did 
 
 J 3 Campb. 175. = 6 Bing. 330. » 1 Esp. 236. * 2 Stark. 417. 
 
 5 2 T. K. 763. 6 11 East, 390. ' 2 T. R. 24.
 
 34G GOOD V. CHEESMAN. [CHAP. Ill 
 
 not appear by the pleadings in that case tliat tlie creditors agreed 
 to forbear. Here it may be inferred that they did.] Still it was 
 a question discussed by the Court, whether an agreement to forbear, 
 under such circumstances, was binding ; and they thought it was not. 
 Lord Ellenliorough lays it down in Sleinman v. Magnus'^, that, in the 
 absence of fi-aud on other parties, a simple agreement by a creditor 
 to accept less than his just demand will not bind him. The non- 
 completion of the agreement in the present case was the fault of the 
 defendant; for, according to Cranley v. Hillary^, (where Lord Ellen- 
 borough seemed inclined to reconsider his former opinion in Boothbey v. 
 Sowden',) the person to be discharged is bound to do the act which 
 is to discharge him, and not the otiier party. It was his business to 
 seek out the creditors, procure the nomination of a trustee, and tender 
 the necessary securities. If tlie defendant, instead of the general issue, 
 had pleaded accord and satisfaction, it would not have been sufficient 
 to shew a parol agreement by tlie plaintiff and other creditors to receive 
 less than their demands ; the defendant must have averred an execution 
 by himself of an assignment or warrant of attorney, or something tanta- 
 mount, in fulfilment of his part of the accord, and an acceptance by 
 tliem : for "every accord ought to be full, perfect, and complete;" and "if 
 the thing be to be performed at a day to come, tender and refusal is not 
 sufficient without actual .satisfaction and acceptance." Feytoe's case''. 
 
 Lord TENTERDEJf, C. J. U^pon the whole, I am of opinion that the 
 verdict in this case was right. On the evidence it must be taken that 
 the defendant assented to the composition, and would have been willing 
 to assign a third of his income to a trustee nominated by the creditors, 
 and execute a warrant of attorney, as required by the agreement ; 
 but he could not do so unless the creditors would appoint a trustee to 
 whom such assignment could be made, or warrant of attorney executed. 
 That no such appointment took place was the fault of the creditors, not 
 of the defendant. It certainly appears that this was not an accord 
 and satisfaction properly and strictly so called, but it was a consent 
 by the parties signing the agreement to forbear enforcing their demands, 
 in consideration of their own mutual engagement of forbearance ; the 
 defendant, at the same time, promising to make over a part of his 
 income, and to execute a warrant of attorney, which would have given 
 the trustee an immediate right for their benefit. Then is not this a 
 case where each creditor is bound in consequence of the agreement of 
 the resf! It appears to me that it is so, both on principle and on the 
 authority of the cases in which it has been held that a creditor shall 
 not bring an action, where others have been induced to join him in a 
 composition with the debtor ; each party giving the rest reason to believe 
 that, in consequence of such engagement, his demand will not be enforced. 
 ' 11 East, 393. "■ 2 M. & S. 120. ' 3 Campb. 175. ■■ 9 Kqi. 79. h. 
 
 I
 
 SKCT. V] GOOD ('. CHEESMAN. .'347 
 
 This is, in fact, a new agreement, substituted for the original contract 
 with tlie debtor ; the consideration to each creditor being tlie engagement 
 of the othei's not to press their individual claims. 
 
 LiTTLEDALE, J. This is not strictly an accord and satisfaction or a 
 release, but it is a new agreement between the creditor and debtor, 
 such as might vei'y well be entered into on a valid consideration. It 
 was not necessary in this particular case that there should be an actual 
 assignment, or execution of a warrant of attorney : if it only rested 
 with the plaintiff and tlie other creditors that the contract should be 
 carried into effect, and the defendant was always ready to do his part, 
 it is the same as if he had actually executed an assignment or warrant 
 of attorney. This case, therefore, is different from Heatlicote v. Crooh- 
 shan.ks^. And it would be unjust that the plaintiff by this action should 
 prejudice the other three creditors, each of whom signed the agreement, 
 and has since neglected the recovery of his demand, under a persuasion 
 that none of the parties to the memorandum would proceed against 
 the defendant. 
 
 Parke, J. I am of opinion that the verdict was right. By the 
 agreement entered into among these parlies, the defendant was to 
 give, and the creditors to accept, certain securities for payment in the 
 manner there stipulated ; and upon the faith of that compromise the 
 three creditors who signed with the plaintiff have postponed their 
 demands. Then, cannot this transaction be pleaded in bar to the present 
 suif? It is laid down in Com. Dig. Accord. (B 4), that an accord with 
 mutual promises to perform is good, though the thing be not performed 
 at the time of action ; for the party has a remedy to compel the 
 performance : but the remedy ought to be such that the party might 
 liave taken it upon the mutual promise at the time of the agreement. 
 Here each creditor entered into a new agreement with the defendant, 
 the consideration of which, to the creditor, was a forbearance by all 
 the other creditors who were parties, to insist upon their claims. 
 Assumpsit would have lain on either side to enforce performance of 
 this agreement, if it had been shewn that the party suing had, as 
 far as lay in him, fulfilled his own share of the contract. I think, 
 therefore, that a mutual engagement like this, with an immediate remedy 
 given for non-performance, although it did not amount to a .satisfaction, 
 was in.the nature of it, and a sufficient answer to the action. 
 
 Patteson, J. Tlie question is, whether or not this agreement was 
 binding on the plaintiff I think it was. The agreement was entered 
 into by him on a good consideration, namely, the undertaking of the 
 other creditors who signed the paper at the same time with him, on 
 tlie faith, which evei'y one was induced to entertain, of a forbearance 
 by all to the delstor. Ride discharged. 
 
 ' ■> T. K. 2i.
 
 348 FOAKES V. BEER. [CHAP. Ill 
 
 JOHN WESTON FOAKES Appellant; 
 
 AND 
 JULIA BEER Respondent. 
 
 In the House of Lords, May 16, 1884. 
 
 [Ileported in Law V^eports, 9 Appeal Cases, 605.] 
 
 Appeal from an order of the Court of Appeal '. 
 
 On the nth of Augu.st, 1875 the respondent recovered judgment 
 a^fainst the appellant for £2077 17s. 2d. for debt and £13 Is. lOd. for 
 costs. On the 21st of December, 1876 a memorandum of agreement was 
 made and signed by the appellant and respondent in the following 
 terms : — 
 
 " Whereas the said John Weston Foakes is indebted to the said Julia 
 Beer, and she has obtained a judgment in Her Majesty's High Court of 
 Justice, Exchequer Division, for tjie sum of £2090 19s. And whereas 
 the said John Weston Foakes has requested the said Julia Beer to give 
 liim time in which to pay such judgment, which she has agreed to do on 
 the following conditions. Now this agreement witnesseth that in con- 
 sideration of the said John Weston Foakes paying to the said Julia Beer 
 on the signing of this agreement the sum of £50(1, the receipt whereof 
 she doth hereby acknowledge in part satisfaction of tlie said judgment 
 debt of £2090 19s., and on condition of his paying to her or her executors, 
 administrator.?, assigns or nominee the sum of £150 on the 1st day of 
 July and the 1st day of January or within one calendar montli after each 
 of the said days respectively in every year until the whole of the said sum 
 of £2090 19s. shall have been fully paid and satisfied, the first of such 
 payments to be made on the 1st day of July next, tlien she the said Julia 
 Beer hereby undertakes and agrees that she, her executors, administrators 
 or assigns, will not take an}' proceedings whatever on the said judgment." 
 
 The respondent having in June, 1882 taken out a summons for leave to 
 proceed on tlie judgment, an issue was directed to be tried between the 
 respondent as plaintifi" and the appellant as defendant whether any and 
 what amount was on the 1st of July, 1882 due upon the judgment. 
 
 At the trial of the issue before Cave, J. it was proved that the whole 
 sum of £2090 19s. had been paid by instalments, but the respondent 
 claimed interest. The jury under his Lordship's direction found that the 
 ap2:)ellant had paid all the sums which by the agreement of the 21st 
 of December, 1876 he undertook to pay and within the times therein 
 specified. Cave, J. was of opinion that wliether the judgment was satisfied 
 or not, the respondent was, by reason of the agreement, not entitled 
 to issue execution for any sum on the judgment. 
 
 ' 11 Q. B. D. 221.
 
 SECT. V] FOAKES V. BEER. 349 
 
 The Queen's Bench Division (Watkin Williams and Matliew, JJ.) dis- 
 charged an order for a new trial on the ground of misdirection. 
 
 The Court of Appeal (Brett, M.R., Lindley and Fry, L.JJ.) reversed 
 that decision and entered judgment for the respondent for the interest due, 
 with costs '. 
 
 March 31, April 1. W. II. IIoll, Q.O. for the appellant :— 
 Apart from the doctrine of Curtiher v. Waiie ° there is no reason in 
 sense or law why the agreement should not be valid, and the creditor 
 prevented from enforcing liis judgment if the agreement be performed. It 
 may often be much more advantageous to the creditor to obtain immediate 
 payment of part of his debt than to wait to enforce payment, or perhaps 
 by pres.sing his debtor to force him into bankruptcy with the result of only 
 a small dividend. Moreover if a composition is accepted friends, who 
 would not othei'wise do so, may be willing to come forward to assist 
 the debtor. And if the creditor thinks that the acceptance of part is for 
 liis benefit who is to say it is nof? The doctrine of Cumber v. ICfme^ has 
 been continually assailed, as in Couldery v. Bartnim by Jessel, M.R. ^ In 
 the note to Cumber v. Wane" (1 Smith L. C. 4th ed. p. 253, 8th ed. 
 
 1 11 Q. B. D. 221. = 1 Str. 426. 
 
 2 19 Ch. D. 394, 399. "According to English Common Law a creditor might accept 
 anything in satisfaction of his debt except a less amount of money. He might take a 
 horse, or a canary, or a tomtit if he chose, and that was accord and satisfaction ; but, 
 by a most extraordinary peculiarity of the English Common Law, he could not take 
 19s. 6rf. in the pound; that was nudum pactum. Therefore, although the creditor 
 might take a canary, yet, if the debtor did not give him a canary together with his 
 19s. 6d., there was no accord and satisfaction; if he did, there was accord and satis- 
 faction. That was one of the mysteries of English Common Law. But, that being so, 
 there came a class of arrangements between creditors and debtors, by which a debtor 
 who was unable to pay in full offered a composition of something less in the pound. 
 Well, it was felt to be a very absurd thing that the creditors could not bind themselves 
 to take less than the amount of their debts. There might be friends of the debtor who 
 would come forward and pay something towards the debts; or it might be that the 
 debtor was in such a position that, if the creditors took less than their debts, he would 
 have something over for himself and would exert himself to pay the dividend ; whereas, 
 if the creditors did not, they would get nothing, or less than nothing, if they incurred 
 costs in endeavouring to get payment. Therefore it was necessary to bind the creditors; 
 and, as every debtor had not a stock of canary-birds or tomtits, or rubbish of that kind, 
 to add to his dividend, it was felt desirable to bind the creditors in a sensible way by 
 saying that, if they all agreed, there should be a consideration imported from the agree- 
 ment constituting an addition to the dividend, so as to make the agreement no longer 
 nudum pactum, but an agreement made for valuable consideration; then there would be 
 satisfaction. Consequently, if the creditors came in and all agreed inter sc to take 10s. 
 in the pound, the agreement inter se supplied the additional consideration which was 
 supposed to be necessary, and the debts were satisfied — so satisfied, that, if one of tho 
 creditors obtained an unfair advantage, a Court of Equity actually interfered, and 
 allowed the debtor to recover back the surplus from hira, because he was not entitled to 
 take from the debtor anything more than the composition. The principle upon which 
 the creditor was made to repay was, that his debt was satisfied, and that he had no 
 right to take an unfair advantage." Ed.
 
 :j,-,0 FOAKES V. BEER. [rHAP. Ill 
 
 p. 367) vliicli was written by J. W. Smith and never disapproved by any 
 of the editors, including Willes and Keating, JJ., it is said "that its 
 doctrine is founded upon vicious reasoning and false views of the office of 
 a Court of law, wliicli should rather strive to give effect to the engage- 
 ments which persons have thought proper to enter into, than cast about 
 for subtle reasons to defeat them upon the ground of being unreasonable. 
 Carried to its full extent tlie doctrine of Cumber v. Wane ' embraces the 
 exploded notion that in order to render valid a contract not under seal, 
 tlic adequacy as well as the existence of the consideration must be 
 established. Accordingly in modem times it has been, as appears by the 
 preceding part of the note, subjected to modification in several instances." 
 Cumber v. Wane ' was decided on a ground now admitted to be erroneous, 
 viz. that the satisfaction must be found by the Court to be reasonable. 
 The Court caimot inquire into the adequacy of the consideration. Rey- 
 nolds v. Pinhoice -, which was not cited in Cumber v. Wane ' nor in Fitch 
 V. Sutton ', decided that the saving of trouble was a sufficient considera- 
 tion ; " for it is a benefit unto him to have Iiis debt without suit or charge." 
 This decision was cited witli approval by Littledale, J. in Wilkinson v. 
 Byers *. Piiinel's Ca^e ^ was decided on a point of pleading : the dictum 
 tliat payment of a smaller sum was no satisfaction of a larger, was extra- 
 judicial, and o\-erlooked all considerations of mercantile convenience, such 
 as mentioned in Reynolds v. Pinhowe' ; and it is also noticeable that 
 it was a case of a bond debt sought to be set aside by a parol agreement. 
 It is every day practice for tradesmen to take less in satisfaction of 
 a larger sum, and give discount, where there is neither custom nor right 
 to take credit. The reasoning in Heathcote v. Croolcsha7iks" and Thomas 
 V. Healhorne'' is inconsistent with later decisions: see Sibree v. Tripp', 
 where a promissory note for a smaller sum was held a satisfaction of the 
 debt, and Curlewis v. Clarke ', a similar decision as to a bill. Fitch v. 
 Sutton " will be cited contra, but is clearly wrong. The agreement to pay 
 the respondent's nominee is good consideration. A cheque is sufficient 
 consideration : Goddard v. O'Brien '". It has often been held that a sheet 
 of paper or a stick of sealing wax is a sufficient consideration. The result 
 of the cases is that if Cumber v. Wane ' be right, payment of a less sum 
 than the debt clue, by a bill, promissory note or cheque is a good discharge ; 
 but payment of such less sum by sovereigns or Bank of England notes is 
 not. Here the agreement is not to take less than the debt, but to give 
 time for payment of the whole without interest. Mankind have never 
 acted on the doctrine of Cumber v. Wane ', but the contrary ; nay few are 
 aware of it. By overruling it the House vnll only declare the universal 
 practice to be good law as well as good sense. 
 
 1 1 Str. 426. - Cro. Eliz. 429. ' 5 East, 230. 
 
 < 1 A. & E. m. 5 5 Bep. 117 a. e 2 T. R. 24. 
 
 ' 2 B. & C. 477. 8 15 M. & W. 23, 37. ^ 3 Ex. 875. 
 "> 9 Q. B. D. 87.
 
 SKCT. V] FOAKES ('. BEER. 351 
 
 [Earl of Selborxe, L.C. ; — Whatever maybe the ultimate decision of 
 this appeal the House is niutli indebted to Mr. HoU for his exceedingly 
 able argument.] 
 
 Winch followed on the same side, and contended that on the true 
 construction of the agreement no provision was made for interest. 
 
 JJompas, Q.C. {Gagkell witli him) for the respondent : — 
 
 The agreement was not intended to and does not deprive the respon- 
 dent of her right to interest. But if it does it is void for want of conside- 
 ration. There is a strong current of authority that what the law implies 
 as a duty is no consideration. Therefore where a debt is due part 
 payment is no reason for giving up the residue. The doctrine is too well 
 settled to be now overthrown : see a long list of authorities, among which 
 it is enough to refer to Dixon v. Adams ' ; Richards v. Bartlet ' ; Goring v. 
 Goring ^ ; Geang v. Swaine ■* ; McManus v. Bark * ; Fitch v. Sutton " ; 
 Ailams V. Tapling ' ; Down v. Hatcher " ; Evans v. Powis ". In the cases 
 in which Cumber v. Wane '° has been departed from the Judges admit its 
 principle, but distinguish the facts. Goddard v. O'Brien" was wrongly 
 decided. It is contrary to public policy to make the performance of a 
 legal duty a good consideration ; see the cases on seamen's wages : Stilk v. 
 Myrick^^ ; Harris \. Watson^" ; NewmanY. Walters'^*; Clutterhuckv. Coffin^^ ; 
 Harris v. Carter"'. Where law and practice are so well established this 
 House will not now depart from them : see the observations in Dan/ord v. 
 McAnulty". The Court went even further than Cumber v. TFane'° in 
 Lovelace v. Cocket^', where to an action on a bond for the payment of 
 money at a certain day, a plea that the plaintifi' at the day of payment 
 accepted another bond for the payment of the money in satisfaction, was 
 on demurrer " held to be a naughty plea, for one bond cannot overthrow 
 another." And so in Hawes v Birch'^ it was held that "one thing 
 in action cannot be satisfaction for another thing in action." 
 
 Holl, Q.C. in reply :— 
 
 The cases about seamen's wages have always been based on questions 
 of public policy : see Harris v. Watson'". Dixon v. Adams' was commented 
 upon by Littledale, J. in Wilkinson v. Byers'-'. Richards v. Bartlet' and 
 Geang v. Swaine'^ were decided on the ground that a plea of accord with- 
 out satisfaction is no bar. In Down v. Hatcher" no reasons for the decision 
 were given, and it was doubted by Parke, B. in Cooper v. Parker'''. 
 
 The House took time for consideration. 
 
 " Cro. El. 538. = 1 Leon. 1'.). ' Telv. 10. 
 
 * 1 Lutw. C. P. 464, 466. = Law Rep. 5 Ex. 65. « 5 East, 230. 
 
 ' 4 Mod. 88. 8 10 A. & E. 121. » 1 Ex. 601. 
 
 >° 1 Str. 426. " 9 Q. B. D. 37. " 2 Camp. 317. 
 
 13 1 Peake, 102. '* 3 B. A- P. 612. i^ 4 Scott, N. E. 509. 
 
 >6 3 E. & B. 559. " 8 App. Cas. 463. '» 1 Br. ct Gold. 47. 
 
 >» 1 Br. & Gold. 71. ■" 1 Peake, 102. -' 1 A. it E. 111. 
 
 •-■■= 1 Lntw. C. P. 464. •-' 15 C. B. 822, 828.
 
 352 FOAKES V. BEER. [CIIAP. Ill 
 
 May 1 6. Earl of Selborne, L. C. : — 
 
 My Lords, upon the construction of the agreement of the 21st of 
 December, 1876, I cannot dilier from the conclusion in which both the 
 Courts below were agreed. If tlie operative part could properly be 
 controlled by the recitals, I think there would be mucli reason to say that 
 the only thing contemplated by the recitals was giving time for payment, 
 without any relinquishment, on the part of the judgment creditor, of any 
 portion of the amount recoverable (whether for principal or for interest) 
 under the judgment. But the agreement of the judgment creditor, which 
 follows the recitals, is that she " will not take any proceedings whatever 
 on the judgment," if a certain condition is fulfilled. What is that 
 condition? Payment of the sum of £150 in every half year, "until the 
 wliole of the said sum of £2090 19«." (the aggregate amount of the 
 principal debt and costs, for which judgment had been entered) "shall 
 have been fully paid and satisfied." A particular "sum" is here 
 mentioned, which does not include the interest then due, or future 
 interest. Whatever was meant to be payable at all, under this agreement, 
 was clearly to be payable by half-yearly instalments of £1.50 each; any 
 other construction must necessarily make the conditional promise 
 nugatory. But to say that the half-yearly payments were to continue 
 till the whole sum of £2090 19s., "and interest thereon," should have 
 been fully paid and satisfied, would be to introduce very important words 
 into the agreement, which are not there, and of which I cannot say that 
 they are necessarily implied. Although, therefore, I may (as indeed I do) 
 very much doubt whether the effect of the agreement, as a conditional 
 waiver of the interest to which she was by law entitled under the 
 judgment, was really present to the mind of the judgment creditor, still I 
 cannot deny that it might have that effect, if capable of being legally 
 enforced. 
 
 But the question remains, whether the agreement is capable of being 
 legally enforced. Not being under seal, it cannot be legally enforced 
 against the respondent, unless she received consideration for it from the 
 appellant, or unless, though without consideration, it operates by way of 
 accord and satisfaction, so as to extinguish the claim for interest. What 
 is the consideration'? On the face of the agreement none is expressed, 
 except a present payment of £500, on account and in part of the larger 
 debt then due and payable by law under the judgment. The appellant 
 did not contract to pay the future instalments of £150 each, at the times 
 therein mentioned ; much less did he give any new security, in the shape 
 of negotiable paper, or in any other form. The promise de futuro was 
 only that of the respondent, that if the half-yearly payments of £150 
 each were regularly paid, she would " take no proceedings whatever on the 
 judgment." No doubt if tlie appellant had been under no antecedent 
 obligation to pay the whole debt, his fulfilment of the condition might 
 have imported some consideration on his part for that promise. But he
 
 SECT. V] FOAKES V. BEER. 35" 
 
 was under that antecedent obligation ; and payment at those deferred 
 dates, by the forbearance and indulgence of the creditor, of the residue of 
 the principal debt and costs, could not (in my opinion) be a consideration 
 for the relinquishment of interest and discharge of the judgment, unless 
 the payment of the £500, at the time of signing the agreement, was such a 
 consideration. As to accord and satisfaction, in point of fact there could 
 be no complete satisfaction, so long as any future instalment remained 
 payable ; and I do not see how any mere payments on account could 
 operate in law as a satisfaction ad interim, conditionally ujwn other 
 payments being afterwards duly made, unless tliere was a consideration 
 sufficient to support the agreement while still unexecuted. Nor was 
 anything, in fact, done by the respondent in this case, on the receipt of 
 the last payment, which could be tantamount to an acquittance, if the 
 agreement did not previously bind her. 
 
 The question, therefore, is nakedly raised Ijy this appeal, whether your 
 Lordships are now prepared, not only to overrule, as contrary to law, the 
 doctrine stated by Sir Edward Coke to have been laid down by all the 
 judges of the Common Pleas in PimwVs Cane' in 1602, and repeated in 
 his note to Littleton, sect. 34:4 ■', but to treat a prospective agreement, not 
 under seal, for satisfaction of a debt, by a series of payments on account 
 to a total amount less than the whole debt, as binding in law, provided 
 those payments are regularly made ; the case not being one of a composi- 
 tion with a common debtor, agreed to, inter se, by several creditors. 
 I prefer so to state the question instead of treating it (as it was put 
 at the Bar) as depending on the authority of the case of Cumber v. Wane/, 
 decided in 1718. It may well be that distinctions, which in later cases 
 have been held sufficient to exclude the application of that doctrine, 
 existed and were improperly disregarded in Cumber v. Wane^ ; and yet 
 that the doctrine itself may be law, rightly recognised in Cumber v. 
 Wane', and not really contradicted by any later authorities. And this 
 apj)ears to me to be tlie true state of the case. The doctrine itself, as 
 laid down by Sir Edward Coke, may have been criticised, as questionable 
 in principle, by some persons whose opinions are entitled to respect, but it 
 has never been judicially overruled ; on the contrary I think it has 
 always, since the sixteenth century, been accepted as law. If so, I 
 cannot think that your Lordships would do right, if you were now to 
 reverse, as erroneous, a judgment of the Court of Appeal, proceeding upon 
 a doctrine which has been accepted as part of the law of England for 280 
 years. 
 
 The doctrine, as stated in Pinnel's Case', is "that payment of a 
 lesser sum on the day " (it would of course be the same after the day), " in 
 satisfaction of a greater, cannot be any satisfaction for the whole, because 
 it appears to the Judges, that by no possibility a lesser sum can be a 
 
 ' 5 Kep. 117 a. 2 Co. Litt. 212 b. 
 
 2 1 Sm. L. C. 8th ed. 357. 
 
 F. 23
 
 354 FOAKES V. BERR. [f'HAP. Ill 
 
 satisfaction to tlic phiintilV for a greater sum." As stated in Coke 
 Littleton, 2126., it is, "where the condition is for payment of ^20, the 
 obligor or feoffor cannot at the time appointed pay a lesser sum in 
 satisfaction of the wliole, because it is apparent that a lesser sum of 
 money cannot be a satisfaction of a greater ; " adding (what is beyond 
 controversy), that an acquittance under seal, in full satisfaction of the 
 •whole, would (under like circumstances) be valid and binding. 
 
 The distinction between the effect of a deed under seal, and that of an 
 agreement by parol, or by writing not under seal, may seem arbitrary, but 
 it is established in our law ; nor is it really unreasonable or practically 
 inconvenient that the law should require particular solemnities to give to 
 a gratuitous contract the force of a binding obligation. If the question be 
 (as, in the actual state of the law, I think it is), whether the con.sideration 
 is, or is not, given in a case of this kind, by the debtor who pays down 
 part of the debt presently due from him, for a promise by the creditor to 
 relinquish, after certain further payments on account, the residue of the 
 debt, I cannot say that I think consideration is given, in the sense in 
 which I have always understood that word as used in our law. It might 
 be (and indeed 1 think it would be) an improvement in our law, if a release 
 or acquittance of the whole debt, on payment of any sum which the creditor 
 might be content to receive by way of accord and satisfaction (though 
 less than the whole), were held to be, generally, binding, though not under 
 seal ; nor should I be unwilling to see equal force given to a prospective 
 agreement, like the present, in writing though not under seal ; but I think 
 it impossible, without refinements which practically alter the sense of the 
 word, to treat such a release or acquittance as supported by any new 
 consideration proceeding from the debtor. All the authorities subsequent 
 to Cumber v. Wane\ which were relied upon by the appellant at your 
 Lordships' Bar (such as Sibree v. Trvpp^, Curlewis v. Clark', and Goddard 
 V. O'Brien* have proceeded upon the distinction, that, by giving negotiable 
 paper or otherwise, there had been some new consideration for a new 
 agreement, distinct from mere money payments in or towards discharge of 
 tlie original liability. I think it unnecessary to go through those cases, or 
 to examine the particular grounds on which each of them was decided. 
 There are no such facts in the case now before your Lordships. What 
 is called "any benefit, or even any legal possibility of benefit," in 
 Mr. Smith's notes to Cumber v. K'ane', is not (as I conceive) that sort 
 of benefit wliich a creditor may derive from getting payment of part of 
 the money due to him from a debtor who might otherwise keep him 
 at ai-m's length, or possibly become insolvent, but is some independent 
 benefit, actual or contingent, of a kind which might in law be a 
 good and valuable consideration for any other sort of agreement not 
 under seal. 
 
 1 1 Sm. L. C. 8th ed. .366. ^ 15 M. & W. 23. 
 
 ' 3 Ex. 375. ■" Q. B. D. 37.
 
 SECT. V] SCOTSON V. PEGG. ,*!.").") 
 
 My conclusion is, that tlie order appe.ilod from should he affirmed, 
 and tlie appeal dismissed, with costs, and I so move your Lordships'. 
 
 Order appealed from affirmed, and appeal dismissed icith costs. 
 
 Lords' Journals, 16 May, 1884. 
 
 SCOTSON AND OTHERS v. PEGG. 
 In the Exchequer, January 2S, 18G1. 
 
 [Reported In (> Hurhtonc tC Xnrman, 295.] 
 
 Declaration. For that in consideration th.at the plaintiffs, at the 
 request of the defend<T.ut, would deliver to the defendant a certain cargo 
 of coals, then on board a certain ship of the plaintiffs, the defendant 
 to take the same from and out of the said ship, the defendant promised 
 the plaintiffs to unload and discharge the same at the rate of forty-nine 
 tons of the said coals during each working day, after the said ship was 
 ready to unload and discharge the same. And although the plaintiffs did 
 afterwards deliver the said cargo to the defendant, and were always ready 
 and willing to suffer and permit him to take the same from and out of the 
 said ship as aforesaid, and althougli all tilings were done, and conditions 
 precedent to be performed by the plaintiffs were performed by the 
 plaintiffs, to entitle the plaintiffs to a performance of the said promise 
 by the defendant, — yet the defendant did not unload and discharge 
 the said cargo at the rate aforesaid during each working day after the 
 said ship was ready to unload and discharge the same, and the defendant 
 wholly neglected and refused so to do for five days longer and more than 
 he ought to have done according to his said promise ; and the plaintiffs 
 were put to expense in and about the maintaining and keeping the mastt'r 
 and crew of the said sliip, &c. 
 
 Plea : That before the making of the said pi-omi.se the plaintiffs, by 
 anotlier contract made by and between tlie plaintiff's and cer-tain other 
 persons, agreed with the said certain other persons, for certain freight 
 therefore payable by tlie said other persons to the plaintiffs, to carry 
 the said coals on a certain voyage in the said ship, and to deliver the 
 said coals to the order of the said other persons, which contract was in 
 full force thence until and at the time of the making of the said promise 
 and the delivery of said coals. And the defendant says that before 
 the making of the said promise, and after the making the said other 
 contract, and while the last-mentioned contract was in force, he bought 
 the coals of the said other persons, who thereupon ordered the plaintifl's 
 
 ' The otl;er judgments are omitted. Ed. 
 
 23—2
 
 35G SCOTSON V. PEGG. [CHAP. Ill 
 
 to (U'livor the same to tlie dcfcndaut under and according to the said 
 contract with the said other persons, of which the plaintiffs, before the 
 making of tlie said jiromise, had notice. And tlie defendant says that 
 the said order -was in full force until and at the time of the making of 
 the said promise, and thence until and at the delivery of the said coals, 
 of which tlie plaintiti's always had notice. And the defendant says the 
 then further delivery to the defendant of the said coals on the terms in 
 the declaration mentioned, which was the consideration for the said 
 promise, was tlie delivery of the said coals to the order of the said othei' 
 persons, wliich the plaintiffs had by the said contract with such other 
 persons so agreed to make as aforesaid, and which before and at the 
 time of the making of the said promise, until and at the time of the said 
 delivery, the plaintifls were, by, under, and according to the said contract 
 with the said other persons, bound to make as aforesaid. And the 
 defendant says that there never was any consider.ation for his said 
 promise other than the doing of that which by the said contract with 
 the said other persons, they, the plaintiffs, before and at the time of the 
 making of the said promise, and thence until the plaintiffs did it, were 
 bound to do. 
 
 Demurrer and joinder. 
 
 Dowdesioell, in support of the demurrer. The plea is bad. It admits 
 a promise by the defendant to unload the coal at the rate of forty-nine 
 tons a day ; and the delivery of the same by the plaintifis is a sufficient 
 consideration to support the promise. The defendant, having made an 
 express promise, is not relieved from his obligation to perform it because 
 the plaintiff has entered into a previous contract with another person to 
 deliver to his order. The defence would be available under the general 
 issue ; but the plea was allowed on the authority of Shadwell v. SJiadwell. 
 This is an attempt to question the decisions on this subject, which have 
 been uniform from the time of Jesson v. Solly'. 
 
 The court then called on 
 
 C. Pollock, to support the plea. There is no consideration to support 
 the promise. Tlie plea shews that the consideration alleged in the 
 declaration is the doing that which the jalaintiffs, by their contract with 
 other persons, were bound to do. The charter-party only specifies the 
 time and mode in which the cargo is to be discharged, as between the 
 charterer and shipowner. [Martin, B. You must establish this, that, if 
 a person says to another, " The goods which I have in my ship are yours ; 
 but I will not deliver them unless you pay my lien for freight," which the 
 latter agrees to do, the delivery of the goods is no consideiution to support 
 the promise to pay.] The cargo is the property of tlie defendant, and the 
 agreement to deliver to him that which he was entitled to have was a 
 nudum pactum. In Black. Com., vol. ii. p. 450, it is said : " If a man 
 buys his own goods in a fair or market, the contract of sale shall not bind 
 
 1 4 Taunt. 52. 
 
 I
 
 SECT, v] SCOTSON V. PEGG. 357 
 
 Inm, so that he shall render the price, unless the property had been 
 previously altered by a former sale." [Wilde, B. That is the case of a 
 purchase of goods, the property in them being already in the purchaser ; 
 but here the plaiutills will not deliver the cargo to the defendant, where- 
 upon the defendant says, " If you will deliver it to me, I will discharge it 
 in a certain manner."] The plaintiffs were under a prior legal obligation 
 to deliver the cargo, and therefore the promise to the defendant to do the 
 same thing was void. Where a plaintiff discharged one of two joint 
 debtors, it was held tliat a promise by a third person to pay the debt, in 
 order to obtain the discharge of the other debtor, was void for want of 
 consideration. Herring v. BurreV. So, if A. be illegally arrested by B. 
 for a debt, a promise by C. to pay the debt claimed by B. in consideration 
 of B.'s releasing A. out of custody, is void. Atkinson v. Settree". 
 [Wilde, B. In those cases there was a legal right to the performance 
 of the very act which was bargained for : it is not so here. Martin, B. 
 Suppose a man promised to marry on a certain day, and before that 
 day arrived he lefused, on the ground that his income was not sufficient, 
 whereupon the fatlier of the intended wife said to him : " If you will 
 marry my daughter, I will allow you £1000 a year." Could not the 
 contr'act be enforced 1] There would be no consideration for such a 
 promise, the party being already under an obligation to marry. A 
 promise by a captain to pay his sailors increased wages for performing 
 their duty during a storm is void for want of consideration. [Maktin, B. 
 That proceeds on the ground of public policy. Wilde, B. It often 
 happens that when goods arrive in a ship, and there is a lieu upon them, a 
 merchant who wants to get possession of the goods promises to pay the 
 lien if the master will deliver them to him. A man may be bound l)y his 
 contract to do a particular thing, but while it is doubtful whether or no he 
 will do it, if a third person steps in and says, " I will pay you, if you will 
 do it," the perfoi-mance is a valid consideration for the payment. 
 Martin, B. If a builder was under a contract to finish a house on a 
 particular day, and the owner promised to pay him a sum of money if he 
 would do it, what is to prevent the builder from recovering the money 1] 
 As the plaintiffs would be doing a wrong by not fulfilling their contract, 
 it must be presumed that the prior legal obligation, and not the subsequent 
 promise, was the motive for their delivery of the cargo. 
 
 Martin, B. I am of opinion that the plea is bad, both on principle 
 and in law. It is bad in law because the ordinary rule is, that any act 
 done whereby the contracting party receives a benefit is a good considera- 
 tion for a promise by him. Here the benefit is the delivery of the 
 coals to the defendant. It is consistent with the declaration that there 
 may have been some dispute as to the defendant's right to have the 
 coals, or it may be that the plaintiff's detained them for demurrage ; in 
 
 ' 8 Dowl. P. C. 604. 2 wiUcs, 482.
 
 358 SCOTSON V. PEGQ. [cHAP. Ill 
 
 either case tliere would be good consideration that the plaintifls, who 
 were in possession of tlie coals, would allow the defendant to take them 
 out of the ship. Then is it any answer that the plaintifls had entered 
 into a prior contract with other persons to deliver tlie coals to their 
 order upon the same terms, and that the defendant was a stranger to 
 that contract ? In my opinion it is not. We must deal with this case 
 as if no prior contract had been entered into. Suppose the plaintiffs had 
 no chance of getting their money from the other persons, who might 
 perhaps have become bankrupt. The defendant gets a benefit by the 
 delivery of the coals to liim, and it is immaterial that the plaintifls had 
 previously contracted with third parties to deliver to their order. 
 
 Wilde, B. I am also of opinion that the plaintiffs are entitled to 
 judgment. The plaintiff's say, that in consideration that they would 
 deliver to the defendant a cargo of coals from their ship, the defendant 
 promised to discharge the cargo in a certain way. The defendant in 
 answer says, " You made a previous contract with other persons that 
 they should discharge the cargo in the same way, and therefore 
 there is no consideration for my promise." But why is there no con- 
 sideration? It is said, because the plaintiffs, in delivering the coals, 
 are only performing that which they were already bound to do. But 
 to say that there is no consideration is to say that it is not possible for 
 one man to have an interest in the performance of a contract made by 
 another. But if a person chooses to promise to pay a sum of money 
 in order to induce another to perform tliat which he has already contracted 
 with a third person to do, I confess I cannot see why such a promise 
 should not be binding. Here the defendant, who was a stranger to the 
 original contract, induced the plaintiffs to part with the cargo, which they 
 might not otherwise have been willing to do, and the delivery of it to the 
 defendant was a benefit to him. I accede to the proposition that, if a 
 person contracts with anotlier to do a certain thing, he cannot make the 
 performance of it a consideration for a new promise to the same individual. 
 But there is no authority for the proposition that where there has been a 
 promise to one person to do a certain thing, it is not possible to make a 
 valid promise to another to do the same thing. Therefore, deciding this 
 matter on principle, it is plain to my mind that the delivery of the coals 
 to the defendant was a good consideration for his promise, although the 
 plaintiffs had made a previous contract to deliver them to the order of 
 other persons. 
 
 Judrjmenl for the flavnliffs^. 
 ' Pollock, C. B., and Channell, B., were absent. 
 
 I 
 
 I' 
 
 I
 
 SECT. Vl] XK'IIOLS i: UAVNBUED. 359 
 
 SECTION VL 
 
 EXECUTORY CONSIDERATION. 
 
 NICHOLS r. RAYNBRED. 
 Hilary Term, 1015. 
 
 [Reported in Hohart, 88.] 
 
 Nichols brought an assumpsit against Raynbred, declaring that, in 
 consideration that Nichols promised to deliver the defendant to his 
 own use a cow, the defendant promised to deliver him fifty shilling.s. 
 Adjudged for the plaintiff in both courts, that tlie plaintiff need not to 
 aver the delivery of the cow, because it is promise for promise. Note, 
 here the promises must be at one instant, for else they will be both nuda 
 pacta. 
 
 HARRISON V. CAGE AND HIS WIFE. 
 In the King's Bench, Michaelmas Term, 1C98. 
 
 [Reported in 5 Modern, 411.] 
 
 This is an action on the case, wherein the plaintifl' declares that, in 
 consideration the plaintiff would marry the defendant, the defendant 
 promised to marry him, and that he had offered himself to her, but 
 that she refused him, and had married the other defendant. 
 
 First, This action does not lie. Indeed it might be otherwise in the 
 case of a woman ; for a marriage is an advancement to a woman, but not 
 to a man, as appears in Anne Davis's Case,' and in the case of a feoffment 
 causa matrimonii prcelocuti, which shews that there is a great difference 
 between the two cases of a man and a woman ; for it is a breach of a 
 woman's modesty to promise a man to marry him, but it is not for a man 
 to promise a woman to marry her. 
 
 Secondly, Here is no time laid when this marriage was to be ; and it 
 may be still. 
 
 Thirdly, The consideration is ill ; it is no more than " I will be your 
 husband if you will be my wife : " it is no more than this, " I will be your 
 master, and you shall be my servant." 
 
 I i Rep. IB b.
 
 360 LEKS V. WHITCOMB. [cHAP. Ill 
 
 Fourthly, It is not reasonable that a young woman should be caught 
 into a promise. 
 
 £ contra. The action very well lies ; and certainly marriage is as 
 mucli advancement to a man as it is to a woman. And I am sorry that 
 the counsel on the other side has so mean an opinion of a good woman as 
 to tliiiik that she is no advancement to a man. We say that we have 
 oiTered ourselves, and that she did refuse us ; and though we do not 
 mention the portion, it is well enough. 
 
 Holt, C. J. Why should not a woman be bound by her promise as 
 well as a man is bound by his 1 Either all is a nudum pactum, or else the 
 one promise is as good as the other. You agree a woman shall have an 
 action ; now what is the consideration of a man' promise 1 Why, it 
 is the woman's. Then why .should not his promise be a good con- 
 sideration for her promise, as well as her promise is a good consideration 
 for his 1 There is the same parity of reason in the one case as there is 
 in the other, and the consideration is mutual. As for the case of the 
 matrimonii prcelocuti, that goes upon another reason, there being a 
 feoiiment of lands and a condition annexed to it ; but this here is upon 
 a contract. In the ecclesiastical court he might have compelled a 
 performance of this promise ; but here indeed she has disabled herself, for 
 she has married another. Then you might have given in evidence any 
 lawful impediment upon tliis action ; as that the parties were within the 
 Levitical degrees, ifec, for this makes the promise void ; but it is otherwise 
 of a precontract. 
 
 TuRTON, J. There is as much reason for the one as for the other; and 
 Halcomb's Case in Vaughan is plain. 
 
 RoKEBY, J. If a man be scandalized by words per quod matrimonium 
 amisit, a good action lies ; and why not in this case 1 
 
 TuETON, J. This action is grounded on mutual promises. 
 
 Holt, C. J. The man is bound in respect of the woman's promise ; if 
 she make none, he is not bound by his promise, and then it is a nudum 
 pactum ; so that her promise must be good to make his signify any thing 
 to her ; and then if her promise be good, why should not a good action lie 
 upon it? Judgment for the plaintiff. 
 
 LEES V. WHITCOMB. 
 In the Common Pleas, June 14, 1828. 
 
 [Reported in 5 Binyham, 34.] 
 
 Assumpsit. The plaintifT declared, in the fourth count of his 
 declaration, that in consideration tiie plaintiff, at the special instance 
 
 I
 
 SECT. Vl] LEES I'. WHITCOMB. 301 
 
 and request of the defendant, would receive the defendant into liis 
 service, and cause her to be taught tlie trade and business of a di'ess- 
 niaker and milliner by the wife of the plaintill", and the defendant agreed 
 and undertook and faitlifully promised the plaintiff to continue wtii the 
 wife of the plaintiff for two years, from the 5th of June, 182G, for the 
 purpose of learning the business. 
 
 Averment of the defendants reception and instruction by the plaintiff's 
 wife, and of Jier staying in his service till April 14, 1827. Breacii, 
 her refusal to remain in his service for the remainder of the period of 
 two years. 
 
 In the fifth count the consideration was stated to be simply the 
 receiving the defendant into his service, and the undertaking, to serve. 
 
 There were other counts ; but these came nearest to the agreement 
 between the parties, and were the only ones relied on. Plea, non 
 assumpsit. 
 
 At the trial before Park, J., Middlesex sittings after Hilary term, the 
 plaintiff, in support of his action, gave in evidence the following agree- 
 ment, signed by the defendant : 
 
 " I hereby agree to remain with Mrs. Lees, of 302, Regent Street, 
 for two years from the date hereof, for the purpose of learning the 
 business of a dress-maker. As witness my hand this 5th day of June, 
 1826. 
 
 "Amelia Whitcomb". 
 
 No premium was paid by the defendant, who, on the day mentioned in 
 the agreement, entered the plaintifl''s house, and left him in April 
 following, by which time she had made such progress in learning the 
 business that her services were becoming valuable to the plaintiff. It 
 appeared that dress-making and millinery were two distinct businesses. 
 
 On the part of the defendant it was objected, that there was no 
 mutuality in the above agreement, and that, therefore, it was not binding 
 on the defendant ; that the plaintifi' not having bound himself to teach, 
 although the defendant had agreed to remain and learn, there was an 
 entire absence of consideration for the defendant's agreement ; and that 
 the agreement given in evidence did not correspond with that set out in 
 the declaration. The plaintiff was thereupon nonsuited, with leave to move 
 to set aside the nonsuit, and have a new trial. 
 
 Taddij, Serjt. moved accordingly, and a rule nisi having been 
 granted, 
 
 Wilde, Serjt. shewed cause. 
 
 The fifth count is not supported by the evidence, because a contract to 
 serve is very different from a contract to learn. And there is no considera- 
 tion on the face of the agreement to support the fourth, as there ought to 
 be under the Statute of Frauds. Wain v. WarUers\ Saunders v. Wakefield', 
 
 5 East, 10. M B. i A. 59u.
 
 362 LEES V. WHITCOMB. [CHAP. Ill 
 
 Jenki7is v. Reynolds'. Tlie plaintiff does not biml liiinself to teach, nor is 
 the agreement even signed by hiiii as a party to be charged. 
 
 Tlie Court here called on 
 
 Taddi/. The defendant could not engage to learn without an implied 
 engagement on the part of the plaintiff to teach, so that the consideration 
 sufficiently appears in the engagement to learn. ^Per Curiam. The 
 fourth count alleges the consideration to be to teach the business of 
 a dress-maker and milliner ; it was proved that the two businesses were 
 distinct, aud the writing put in evidence mentions only the business of a 
 dress-maker.] But the word service as employed in the fifth count 
 is usually and properly applied on the relation between master and 
 apprentice. Rex v. Lynn', and therefore, includes the required consideration 
 of the teaching, and gives sufficient mutuality to the contract. As to the 
 omission of the plaintiff's signature, it is sufficient if a memorandum 
 of a bargain be signed by one of the parties to the contract ; Egerton v. 
 Matthews^. 
 
 Best, C. J. I am of opinion that none of the counts are proved. The 
 contract does not bear the meaning which is put upon it in the declaration. 
 Tlie businesses of milliner and dres.s-raaker are very different, and that 
 disposes of the fourth count. The liftli count alleges the consideration to 
 be the plaintiff's receiving the defendant into his service, and the under- 
 taking, an engagement to serve ; but there is by the contract no obligation 
 on the defendant to serve ; her engagement is merely to remain for two 
 years ; and the plaintiff could not have compelled her to serve. It was 
 probably the plaintiff's intention to prevent the defendant from leaving 
 him and setting up for herself the moment she had learned his business, 
 and there might have been a sufficient consideration for that if he 
 had undertaken to teach ; but there is nothing in the agreement to insure 
 such instruction to the defendant. 
 
 BuRRouGii, J. There is no consideration expressed in the agreement 
 for the defendant's undertaking ; and since the case of Wain v. Warlttrs 
 that is indispensable. 
 
 Gaselee, J. The service in the fifth count is alleged generally, and 
 not as a service for the purpose of learning. I feel some difficulty, but 
 not sufficient to render it necessary for me to differ from the rest of 
 the Court. 
 
 Rule discharged. 
 ' 3 B. & B. 14. 2 6 B. ct C. 97. 3 6 East, 306. 
 
 «
 
 SECT. Vl] HOADLY V. M'LAINE. 3G3 
 
 HOADLY V. M'LAINE. 
 In the Common Pleas, April 19, 1834. 
 
 [Reported in 10 Binykam, -182.] 
 
 This was an action against the defendant, for not accepting a landaulet 
 made to his order by the plaintifi". 
 
 The order, which was in writing, and delivered to the phiintiff on the 
 15th of May, 1832, was as follows :— 
 
 " Sir Arcliibald M'Laine orders Mr. Hoadly to build a new, fashion- 
 able, and handsome landaulet, witli the following appointments ;" — [here 
 followed a minute detail of various small matters, to which the proprietors 
 of such vehicles attach importance ;] — "the whole to be ready by the 1st 
 of March, 1833." 
 
 The carriage was completed by the time agreed on ; but, in the course 
 of its construction, a great number of alterations and additions were made 
 from time to time at the request of the defendant. 
 
 In April, 1833, the defendant wrote to the plaintiff, desiring that 
 he would send liis bill for the carriage, and announcing the defendant's 
 intention to have it out immediately. The bill, however, amounting 
 to 480/., the defendant refused to pay it, or to accept tlie carriage. 
 Whereupon, tlie plaintitf brought tlie present action, and a great number 
 of coachmakers having proved tliat the landaulet was of such exquisite 
 workmansliip, and so higlily ornamented, as to be cheap at the price 
 demanded, the jury gave a verdict for the plaintiff, with 200/. damages. 
 
 Jones, Serjt. obtained a rule nisi to set aside this verdict, on the 
 ground, first, that the order of May 15, 1832, being silent as to price, there 
 was no sutHcient note or memorandum of tlie contract under the seven- 
 teenth section of the Statute of Frauds, and the 9 G. 4, c. 14. In Elmore 
 V. Kingscote' , the Court said, "there must be a note or memorandum 
 in writing of the bargain. The price agreed to be paid constitutes 
 a material part of the bargain. If it were competent to a party to prove, 
 by parol evidence, the price intended to be paid, it would let in much of 
 the mischief which it was the object of the statute to prevent." — Secondly, 
 that, considering the alterations and additions which liad been agreed 
 to while the vehicle was in the course of construction, the contract proved 
 did not coincide with the contract of the 15th of May, 1832, which was the 
 only one set out in the declaration. 
 
 Wilde and Coleridge, Serjts. shewed cause. Tlie note is sufiicient; for 
 the statutes require only a memorandum of what was agreed, not a 
 memorandum also of what was not. In Kenworthy v. Scojield', Bayley, J. 
 says : — "The word bargain means the terms upon which parties contract ; 
 
 ' 5 B. & C. 583. ' 2 B. 4 C. 947.
 
 364 UOADLY V. M'LAINE. [chap. Ill 
 
 and it appears by Saunderson v. Jackson ', tliat, in order to satisfy tlie 
 statute, tlie .sij;nature must eitlier be to some written document, containing 
 in itself tlie terms of tlie Ijargaiii, or connected with some other document 
 which does." Where a definite price for the article iias been agreed on, 
 as in Elmore v. KingscotP, the memorandum of the bargain should state 
 the price ; and the decision and language of the Court in that case turn 
 on the fact, that the deiinite price, which was part of the bargain, 
 had been omitted in the memorandum. But a bargain made without 
 specification of price is as valid as any other ; where it is so concluded, no 
 price can be specified in the memorandum ; but the memorandum disclos- 
 ing the whole that has been reduced to certainty, is sufficient to satisfy 
 the statute. And all the writings which relate to the contract may be 
 taken together, to shew what the contract was ; Sannderson v. Jackson '. 
 Here, taking the defendant's letter of April, 18S3 in conjunction with his 
 order of May, 1832, it is clear that no specific price was contracted for, but 
 that the carriage was to be built at a reasonable price ; else why does the 
 defendant desire the plaintifi" to send in his bill 1 In a case like this before 
 the statute, where no specific price had been fixed, parol evidence migiit 
 have been adduced to shew what was a reasonable price, because where no 
 price has been fixed the law implies that the party shaU pay a reasonable 
 price ; and in the memorandum required by the statute it is not necessary 
 to state what the law implies. Egcrton v. Mathews'. In the various 
 decisions on the fourth section of the Statute of Frauds, which has been 
 more strictly construed than the seventeenth, the specification of price has 
 never been insisted on ; and as a large proportion of contracts are 
 necessarily entered into without such specification, the inconvenience 
 of requiring it would be intolerable. In Kewbury v. Armstrong', Tindal, 
 C J. says : — "We ought not to be too strict in the construction of these 
 instruments ; for if every agreement entered into by a tradesman be 
 so minutely criticised, it wiU be necessary to resort to an attorney in the 
 most common intercourse of life." And Burrough, J. says : — "Whatever 
 is necessarily implied, may be taken to be in the instrument." 
 
 With respect to the alleged variance, it would be impossible to carry 
 on business in many departments of trade, as that of tailors, upholsterers, 
 builders, and the like, if every alteration or addition in the progress of an 
 executory contract were to be held to constitute a new and substantive 
 bargain, to be void unless evidenced by a new memorandum. 
 
 Atcherley, Serjt. (late Jones). The cases on the fourth section of the 
 Statute of Frauds may be dismissed on the consideration of the present 
 question, because the ditficulty with respect to executory contracts never 
 arose till by the 9 G. 4, c. U, s. 7, after reciting the enactments of 29 Car. 
 2, c. 3, s. 17, it was enacted, "That the said enactments shall extend to 
 all contracts for the sale of goods of the value of 10/. sterling and upwards, 
 notwithstanding the goods may be intended to be delivered at some future 
 ' 2 B. & P. 238. = 6 East, 306. 3 6 Bing. 201.
 
 SECT. Vl] HOADLY V. m'iAIXE. SG5 
 
 time, or may not at the time of such contract be actually made, procured, 
 or provided, or tit or ready for delivery, or some act may be requisite 
 for the making or completing thereof, or rendering the same fit for 
 delivery." 
 
 Tlie passing of that statute has rendered it necessary to introduce into 
 the memorandum of executory contracts as much precision as is required 
 in the memorandum of contracts for goods ready to be delivere^l. The 
 object of requiring that precision was to prevent attempts to alter the 
 terms of a contract by perjury ; an attempt that can never succeed where 
 all the material terms are evidenced by writing. But price is of all 
 the ingredients of a bargain the most important ; and to leave executoi-y 
 contracts open in this respect, is to aflbrd temptation and facility for the 
 mischief which the Statute of Frauds seeks to prevent. A specific price 
 ought, therefore, to be agreed on and expressed on the face of the memo- 
 randum ; and if it be agreed on and not expressed — which, for aught that 
 appears, might have been the case here — the omission to note it in 
 the memorandum of the bargain affords as wide an opening for perjury as 
 if there had been no memorandum at all. The dictum of tlie Court 
 in Elmore v. Kingscote is general and unqualified. And the objection with 
 respect to tlie variance remains unanswered ; for the carriage, in respect 
 of which the plaintiff has given evidence, is so different from the carriage 
 described in the order of May, 1832, that it could only be the result of an 
 entirely new contract, and on that new contract tlie plaintiff should have 
 declared. 
 
 TiNDAL, C. J. TJiis is an action against the defendant for not accept- 
 ing a carriage built pursuant to his order ; and the question depends upon 
 the construction to be put on the statute 9 G. 4, c. 14, s. 7, wliich extends 
 to executory contracts the enactments of the 29 Car. 2, c. 3, s. 17, as to 
 executed contracts for sale of goods, by providing, " that the said enact- 
 ments shall extend to all contracts for the sale of goods of the value 
 of 10/. sterling and upwards, notwithstanding the goods may be intended 
 to be delivered at some future time, or may not at the time of such 
 contract be actually made, procured, or provided, or fit or ready for 
 delivery, or some act may be requisite for the making or completing 
 thereof, or rendering the same fit for delivery." 
 
 The same construction, therefore, must be put on the one act as on the 
 other ; but the extreme accuracy of mind of the framer of the latter act is 
 shewn in this, that while the Statute of Frauds, in its enactments touching 
 contracts for the sale of goods, employs the word price, the framer of the 
 latter act has substituted the word value, so that, where the parties have 
 omitted to fix a price, it may be open to a jury to ascertain the value in 
 dispute. 
 
 The question, therefore, is, whether the order of May, 1832 is a 
 sufficient note or memorandum of the bargain between these parties, with-
 
 3GG IIOAIM.Y V. m'I.AINE. [chap. Ill 
 
 in the seventeenth section of tlie Statute of Frauds; and I am of opinion 
 it is. 
 
 It is clear tliat a contract for tlie sale of a commodity, in wliich the 
 price is left uncertain, is, in law, a contract for what the goods shall 
 he found to be reasonably worth. This is no new doctrine ; for in Black- 
 stone's Commentaries, b. 2, c. 30, it is laid down, that " express contracts 
 arc -whore tlie terms of the agreement are openly uttered and avowed at 
 the time of the making, as to deliver an ox, or ten load of timber, or to pay 
 a stated price for certain goods ; — implied, are such as reason and justice 
 dictate, and whicli, therefore, the law presumes that every man undertakes 
 to perform : — As, if I take up wares from a tradesman, without any agree- 
 ment of price, the law concludes that I contracted to pay tiieir real 
 value." — " A contract for any valuable consideration, as for marriage, for 
 money, for work done, or for other reciprocal contracts, can never be 
 impeached at law." — " These valuable considerations are divided by the 
 civilians into four species. — The third species of consideration is, facio, tU 
 des, when a man agrees to perform anything for a price, either specifically 
 mentioned, or left to the determination of the law to set a value on it." 
 
 What is implied by law is as strong to liind the parties as if it were 
 under their hand. This is a contract in which the parties are silent as to 
 price, and therefore leave it to the law to ascertain what the commodity 
 contracted for is reasonably worth. 
 
 It has been contended, that this would open a door for perjury, and 
 let in the mischief which the Statute of Frauds proposes to exclude. But I 
 cannot agree in that proposition ; for it does not appear that any specific 
 price was agreed on ; and if it had appeared that such was the case, this 
 note would not have been evidence of such a bargain, as the case of 
 Ehnnre v. Kingscote expressly decides. 
 
 Thus the law stands on the note or memorandum of May, 1832. But 
 we may look at all the writings to see what the contract was ; and here, 
 from the defendant's letter of April, 1833, it appears that, after he had 
 seen the carriage, he desired the plaintiff to send in his bill. He must 
 have known whether he had contracted for a stipulated price or not ; and 
 it may therefore be inferred, from this letter, that he knew he was to pay 
 the reasonable charge when the article was made up. 
 
 Taking the whole together, there can be no doubt that here is a 
 sufficient note or memorandum of the bargain, and therefore the rule must 
 be discharged. 
 
 Park, J. This is a case within the statute 9 G. 4, c. 14, s. 7, by which 
 tlie provisions of the Statute of Frauds are extended to executory contracts. 
 But the construction to be put on the one act is the same as on the other. 
 Kow it is only necessary that price should be mentioned in the memoran- 
 dum, when price is one of the ingredients of the bargain : the dicta 
 in Elmore v. Kingscote are applied to the facts of that case, in which the
 
 SECT. Vl] HOADI.Y r. M'LAINE. 367 
 
 bargain was for a specific price ; and it is adniittod on all iiands that, if a 
 specific price be agreed on, and that price is omitted in the memoranduni, 
 tiie memorandum is insufficient. The Court says, " there must be a note 
 or memorandum in writing of the bargain. The price agreed to be paid 
 constitutes a material part of the bargain. If it were competent to a 
 party to prove, by parol evidence, the price intended to be paid, it would 
 let in much of the mischief which it was the object of the statute to 
 prevent." That is, the price wliich had there been agreed on. Therefore 
 we are far from impeaching the decision in Einwre v. Kingscote. " Al- 
 though it be admitted," says the Court in tSaunderson \. Jackson, "that 
 the letter, which does not state the terms of the agreement, would not 
 alone have been sufficient; yet, as the jury have connected it with some- 
 thing which does, and the letter is signed by the defendants, there is then 
 a written note or memorandum of the order which was originally given." 
 That comes home directly to the present case ; for the defendant's letter, 
 referring to the article which was the subject of the contract, says, " Send 
 me my bill. I shall bring out the carriage immediately." Putting the 
 two writings together, it is impossible to say he did not undertake to pay 
 on a quantum meruit. 
 
 Gaselee, J. Upon this contract, followed up as it is by the defend- 
 ant's letter, no doubt can be entertained. But, independently of that, 
 unless we establish as a general principle that every alteration introduced 
 in the progress of an executory contract is to constitute a distinct bargain, 
 requiring a distinct note in writing, I am of opinion, that there is no 
 variance in this case, and that there has been a sufficient memorandum of 
 the contract. If we were to hold otherwise, every building contract would 
 be avoided by every addition. With respect to price, the parties could 
 not put down what was not settled ; and as the memorandum contains all 
 the terms of the bargain as far as the parties had agreed on it at the time, 
 I am of opinion it is sufficient to bind the defendant. 
 
 BosANQDET, J. I am of the same opinion. The questions to be 
 decided are two. First, whether there has been any sufficient note or 
 memorandum of the bargain for this carriage ; secondly, whether the 
 barsrain was for such a carriage as that described in the note which has 
 been produced. 
 
 The objection to the sufficiency of the note is, that it does not express 
 the price to be paid for the carriage ; and the language of the statute 
 9 G. 4, c. 14, which puts executory contracts on the same footing as 
 executed contracts under the Statute of Frauds, so nearly corresponds with 
 the language of the Statute of Frauds, that the one statute must receive 
 the same construction as the other : if price be a necessary ingredient in a 
 memorandum under tlie Statute of Frauds, so it is under the later statute. 
 Now the Statute of Frauds requires a note or memorandum of the terms of 
 the bargain : but that is all : a party is not bound to go beyond what he
 
 368 SIDENFIAM ('. WORLINGTON. [CHAP. Ill 
 
 lias agreed on and signed ; liis antagonist is not allowed to set up a price 
 which has not been agreed on ; and that is the result of the case of Elmore 
 V. Kingncofe, where a specific price having been agreed on, the vendor was 
 not allowed to proceed upon a quantum meruit ; and, according to the 
 same principle, a party cannot insist on a specific price where none 
 has been agreed on. If so, the question is, whether such a bargain is one 
 that could have been enforced before the Statute of Frauds ; and without 
 doul)t it could have been so enforced. Now that statute requires no more 
 than that the bargain, such as it is, should be reduced to writing ; and 
 that lia^ing been done here, the first objection falls to the ground. 
 
 Then, secondly, did the order produced in evidence constitute the 
 contract for the carriage which the defendant rejected'? Taking it in 
 conjunction with the defendant's letter, written after he had seen the 
 carriage complete, and desiring his bill for the same, it is clear that the 
 carriage was the result, of that contract. It seems to me, therefore, that 
 there is no variance, and there being a sufficient memorandum of the 
 bargain under the Statute of Fi'auds, the rule must be discharged. 
 
 Rule discliarged. 
 
 SECTION VII. 
 
 EXECUTED CONSIDERATION. 
 
 SIDENHAM V. WORLINGTON. 
 In the Common Pleas, Easter Term, 1585. 
 
 [Reported in 2 Leonard, 224.] 
 
 In an action upon the case upon a promise, the plaintiff declared 
 that he at the request of the defendant was surety and bail for J. S., 
 who was arrested in the King's Bench upon an action of £30, and 
 that afterwards, for the default of J. S., he was constrained to pay the 
 .£30 ; after which the defendant, meeting with the plaintifl', promised him 
 for the same consideration that he would repay that £30, which he did 
 not pay ; upon which the plaintiff brought the action. The defendant 
 pleaded non assumpsit, upon which issue was joined, which was found 
 for the plaintiff. Walmesley, Serjt., for the defendant, moved the court 
 that this consideration will not maintain the action, because the con- 
 sideration and promise did not concur and go together; for the con- 
 
 I 
 
 I 
 I
 
 SECT. VIl] SIDENHAM V. WORLINGTON. 369 
 
 sideration was long before executed, so as now it cannot be intended 
 that the promise was for the same consideration : as if one giveth me 
 a horse, and a month after I promised him £10 for the said horse, he 
 shall never have debt for the £10, nor assumpsit upon that promise; 
 for there it is neither contract nor consideration, because the same is 
 executed. Anderson. This action will not lie ; for it is but a bare 
 agreement and nudum pactum, because the contract was determined, 
 and not in esse at the time of the promise ; but he said it is otherwise 
 upon a consideration of marriage of one of his cousins, for marriage 
 is always a present consideration. Windham agreed with Anderson, 
 and he put the case in 3 H. 7. If one selleth a horse unto another, 
 and at another day he will warrant liim to be sound of limb and member, 
 it is a void warrant, for tliat such warranty ought to have been made or 
 given at such time as the horse was sold. Periam, J., conceived that the 
 action did well lie ; and he said that this case is not like unto the cases 
 which have been put of the other side : for there is a great difference 
 betwixt contracts and this case ; for in contracts upon sale, the considera- 
 tion and the promise and the sale ought to meet together ; for a contract 
 is derived from coti and irahere, which is a drawing together, so as in 
 contracts every thing wliich is requisite ought to concur and meet 
 together, viz., the consideration of the one side, and the sale or the 
 promise on the other side. But to maintain an action upon an assumpsit, 
 the same is not requisite, for it is sufficient if there be a moving cause or 
 consideration precedent ; for which cause or consideration the promise was 
 made ; and such is the common practice at this day. For in an action 
 upon the case upon a promise, the declaration is laid that the defendant, 
 for and in consideration of £20 to him paid {postea soil.), that is to say, 
 at a day after super se assumpsit, and that is good ; and yet there the 
 consideration is laid to be executed. And he said that the case in Dyer, 
 10 Eliz. 272, would prove the case. -For there the case was, that the 
 apprentice of one Hunt was arrested when his master Hunt was in the 
 country, and one Baker, one of the neighbours of Hunt, to keep the said 
 apprentice out of prison, became his bail, and paid the debt. Afterwards 
 Hunt, the master, returning out of the country, thanked Baker for his 
 neighbourly kindness to his apprentice, and promised him that he would 
 repay him the sum which he had paid for his servant and apprentice : and 
 afterwards, upon that promise. Baker brought an action upon the case 
 against Hunt, and it was adjudged in that case that the action would 
 not Ue, because the consideration was precedent to the promise, because it 
 was executed and determined long before. But in that case it was holden 
 by all the justices that if Hunt had requested Baker to have been surety 
 or bail, and afterwards Hunt had made the promise for the same 
 consideration, the same had been good, for that the consideration did 
 precede, and was at the instance and request of the defendant. Rhodes, J., 
 agreed with Periam ; and he said that if one serve me for a year, and 
 F. 2-1
 
 370 ENGLAND V. DAVIDSON. [cHAP. Ill 
 
 hath nothing for his service, and afterwards, at the end of the year, 
 I proniisf^ liim £20 for his good and faitliful service ended, lie may have 
 and maintain an action upon tlie case upon the same promise, for it is 
 made upon a good consideration ; but if a servant hath wages given him, 
 and his master ex ahindanti doth promise him .£10 more after his service 
 ended, lie shall not maintain an action for that £10 upon the said promise; 
 for there is not any new cause or consideration preceding the promise ; 
 which difference was agreed by all the justices ; and afterwards, upon good 
 and long ad\'ice, and consideration had of the principal case, judgment was 
 given for the plaintifl'; and they much relied upon the case of Hunt and 
 Baker, 10 Eliz., Dyer, 272. 
 
 ENGLAND v. DAVIDSON. 
 In the Queen's Bench, May 5, 1840. 
 
 [Reported in 11 Adolphus <£• Ellis, 856.] 
 
 Assumpsit. The declaration stated that heretofore, to wit .fee., the 
 defendant caused to be published a certain hand bill, placard, or advertise- 
 ment, headed " Fifty pounds reward ; " whereby, after reciting that, late 
 on the night of &c., the mansion house of defendant, at &c., was 
 feloniously entered by three men, who effected tlieir escape, that two 
 men had been taken into custody on suspicion of having been concerned 
 in the felony, and that a third, supposed to belong to the gang, had 
 been traced to Carlisle, and was of the following description, &c., the 
 defendant did promise and undertake that wlioever would give such 
 information as should lead to the conviction of the offender or offenders 
 should receive the above reward : that plaintiff", confiding &c., did after- 
 wards, to wit on &c., give such information as led to the conviction of 
 one of the said offenders, to wit one David Robson ; and that afterwards, 
 to wit at the assizes for Northumberland, D. R., who was guilty of 
 the said offence, to wit the feloniously entering &c., was in due course 
 of law convicted of the said offence of feloniously entering &c., in con- 
 sequence of such information so given by plaintiff; of all which said 
 several premises defendant afterwards, to wit on &c., had notice, and 
 was then requested by plaintiff to pay him the said sum of 501.; and 
 defendant afterwards, to wit on &c., in consideration of the premises, 
 then promised plaintiff to pay him the sum of 50^. : breach, that, although 
 defendant, in part performance of his said promise and undertaking, 
 to wit on &c., did pay to plaintiff the sum of 51. 5s., in part payment 
 of the said sum of 50^., yet <tc. (breach, non-payment of the residue).
 
 SECT. VIl] ENGLAND V. DAVIDSON. 371 
 
 Third piea. Tliat heretofore, and long before and at tlie time when 
 tlie house of defendant was so feloniously entered, and continually from 
 thence hitherto, plaintifl' was, and now is, a constable and police officer 
 of the district where the said house of defendant is situate, and the 
 said oftence was committed ; and it then was the duty of plaintiff, as 
 such constable and police officer, to have given, and to give, every 
 information which might lead to the conviction of the said offender, 
 and to apprehend him and prosecute him to conviction, if guilty, without 
 any payment or reward to him made in that behalf : that, by tlie said 
 advertisement partly set out in the declaration, defendant gave notice and 
 promised that whoever would give such information to plaintiff', therein 
 described as police officer, Hexham, as should lead to the conviction of the 
 offender or offenders, should receive the said reward in the said advertise- 
 ment mentioned, and in no other manner whatever : and that, by reason 
 of the premises, the said promise was and is void in law. Verification. 
 
 Demurrer, assigning for causes that the plea amounts to the general 
 issue, and does not deny, or confess and avoid, and is multifarious, and 
 tenders an immaterial issue. Joinder. 
 
 Ingham now appeared for the plaintiff : but the Court called on 
 
 Martin, for the defendant. No consideration is shewn on this record 
 for the defendant's promise ; the plaintiff was bound to do that, the doing 
 of which is stated as the consideration. The duty of a constable is to 
 do his utmost to discover, pursue, and apprehend felons ; Com. Dig. Leet, 
 (M 9), (M 10); Justices of Peace, (B 79). It has been laid down that 
 a sailor cannot recover on a promise by the master to pay him for extra 
 work in navigating the ship, the sailor being bound to do his utmost, 
 independently of any fresh contract; Harris v. Watson'^, explained by 
 Lord Ellenborough in Stilk v. Meyrick'. The principle was recognized in 
 Newman v. Walters^, where the case of a passenger was distinguished. 
 [Coleridge, J. Those cases turn merely on the nature of the contract 
 made by the sailor.] If the duty here incumbent on the plaintiff" was to 
 do all that the declaration lays as the consideration, the case is the same 
 as if he had been under a previous contract to do all. The cases on 
 the subject of consideration are collected in note (b) to Barber v. Fox*. 
 [Ingham. The constable was not bound to procure evidence.] The 
 contract here declared upon is against public policy. 
 
 Lord Denman, C. J. I tliink there may be services which the 
 constable is not bound to render, and which he may therefore make the 
 ground of a contract. We should not hold a contract to be against the 
 policy of the law, unless the grounds for so deciding were very clear. 
 
 LiTTLEDALE, Patteson, and Coleridge, JJ. concurred. 
 
 Judgment for the defendant. 
 
 1 Peake, N. P. 0. 72. = 2 Camp. 317, s. e. 6 Esp. 129. 3 3 B. & P. 612. 
 
 •> 2 Wms. Saund. 137 c. See also Jones v. Waiie, 5 New Ca. 341, 351, 356; Uaigh 
 V. Brooks, 10 A. & E. 809. 
 
 24—2
 
 372 BRITTAIN V. LLOYD. [CHAP. Ill 
 
 BRITTAIN V. LLOYD. 
 
 In the Exchequer, November 21, 1845. 
 
 [Reported in 14 Ueeson d; WeUhij, 762.] 
 
 This was action of assumpsit for money paid by the plaintiff, an 
 auctioneer, for the use of the defendant, and on an account stated. 
 
 The defendant pleaded non assumpsit, on which issue was joined; and 
 the cause was tried, before Tindal, C. J., at the Derbyshire Spring 
 Assizes, 1844, when it was agreed that a verdict should be found for the 
 plaintiff for 107^. .3s. 9c?. damages, tlie sum claimed by the plaintiff, and 
 40*. costs, subject to the opinion of this Court on a special case ; the 
 Court to have power to draw all inferences from the facts which a jury 
 could or might draw. 
 
 Tlie defendant, being the owner of a freehold estate, consisting of a 
 farm-house, out-buildings, and lands, situate at Woolow, near Buxton, in 
 Derbysliire, employed the plaintiff, who long before and at the time of the 
 auction hereinafter mentioned, and ever since, has been an auctioneer duly 
 licensed, to sell tlie said estate by an auction, to be holden at the Bull's 
 Head Inn, at Fairfield, near Buxton aforesaid, on the 25th of January, 
 1843. Previous to the commencement, and on the day of the auction, the 
 defendant delivered to the plaintiff the following authority to bid for her, 
 signed by herself and John Poundall :— "To Mr John Brittain, auctioneer, 
 Green, Fairfield. Take notice, that Mr. John PoundaU is appointed 
 by Mrs. Charlotte Lloyd, the real owner of the estate intended to be 
 by you put up to sale by way of auction, at tlie Bull's Head Inn, Fairfield, 
 on the 25th day of January instant ; the said Mr. Poundall lieing actually 
 employed by the vendor of such estate to bid at the said sale for the use 
 and behoof of the said Charlotte Lloyd. And take notice, also, that the 
 said Mr. John Poundall hath agreed and doth intend accordingly to bid 
 at the said sale for the use and behoof of tlie said Charlotte Lloyd. As 
 witness the hands of the said Charlotte Lloyd and John Poundall, 
 the 25th day of January, 1843. Charlotte Lloyd, and John Poundall. 
 Witness, Samuel Wood." Which notice, duly signed by tlie defendant 
 and the said John Poundall, being the person intended to make the 
 bidding, was duly given to the plaintifl' before the commencement 
 of the sale, and before the bidding by the said John Poundall hereinafter 
 mentioned. 
 
 Tlie estate was put up for sale by auction by the plaintiff on the said 
 25th of January, 1843, and several persons attended and bid, and 
 PoundaU attended in the sale-room during the auction, and bid as herein- 
 after mentioned. The estate was put up for sale by the plaintiff, subject 
 to the following (amongst other) conditions of sale, which were prepared
 
 SECT, vn] BRITTAIN V. LLOYD. 373 
 
 by the plaintiff in the course of his employment as such auctioneer, and 
 read by the plaintiff at the commencement of tlie auction, \-iz. : — "That 
 the highest bidder should l>e the purchaser. That no bidding should 
 be retracted. That the vendor or her agent should have the right of 
 bidding once for the property. That a deposit should be paid on the fall 
 of the liammer, as also the whole of the auction-duty, to the auctioneer by 
 the purchaser. That the residue of tlie purchase-money should be paid at a 
 future day, when the estate should be conveyed. All fixtures, articles, and 
 things, timber and timber-Kke trees growing on the premises, down to and 
 including those of the value of Is. each, were not to be included in the 
 purchase-money of the premises, but to be paid for in addition to sucli pur- 
 chase-money, at a fair valuation, at the time of completing the purchase." 
 
 Tlie biddings then commenced, the defendant being in a room in the 
 inn adjoining to that in which the auction was held, and having a servant 
 in attendance in the room, to give her information respecting the Inddings, 
 etc. Among the bidders were the names of two persons of the name 
 of Barker and Shaw, the latter of whom ultimately became the purchaser 
 of the estate, as hereinafter mentioned. After several biddings, including 
 several by Shaw, Barker bid 31 .50/., and Shaw shortly afterwards bid 
 3300/. : this was communicated to the defendant by her aforesaid servant, 
 and she immediately sent him to desire Mr Barker to come to her in the 
 private room, and there was a suspension of the auction for a few 
 minutes ; Mr Barker went to the defendant, who inquired of him whether 
 he was bidding for any one in the room, and offered to let him liid a time 
 or two, if he liked ; and stated that he might go up to 3800/., and he 
 should not be charged with the auction duty ; and that if he bid she 
 would not take any advantage of it. He objected, that it was more than 
 the estate was worth ; she then requested him to bid for her, to which he 
 acceded, and returned to the auction room, and the sale was resumed by 
 Barker bidding 3350?. for the defendant. Shaw then bid 3400?., which 
 was communicated by her said servant to the defendant, and who was 
 immediately sent to fetch Shaw to the defendant out of the auction-room. 
 Shaw was taken to the room where defendant was, when she asked 
 him if he would give her the auction duty over his last bidding 1 Shaw 
 replied, he did not know what the auction duty was, but he would wait 
 upon her the following day. It was agreed upon between them that Shaw 
 would wait on her at her residence, at Woolow, the following day, and 
 the hour of two o'clock in the afternoon was fixed. She tlien told 
 Poundall, in Shaw's presence, to go and bid the reserved bidding, whicli 
 he did, and bought in the estate at 3800?., and the plaintiff knocked down 
 the estate to Poundall, observing, that all the parties attending the sale 
 were then at liberty, according to the usual practice, to bid by private 
 contract ; but Shaw would, according to the usage, have the first option. 
 There had been no bidding after Shaw's, of 3400?., before Poundall 
 bid the reserved bidding.
 
 374 BRITTAIN V. LLOYD. [CHAP. Ill 
 
 The next morning, Sliaw met Poundall (who acted for the defendant) 
 at her residence at Woolow, and there saw the defendant. Poundall and 
 Siiaw looked over tlie estate, and Poundall named 3550Z. or 3.560/'. for the 
 estate, including timber, fixtures, &c., wliich were estimated in a lump at 
 the sum of 45/. : he had not received any previous instructions so to do. 
 Shaw then oflered 3.500i!. for the estale, and 40Z. for the fixtures, &c., and 
 said, if lip could not have it at that price, he would not have it at all. 
 Poundall then consulted the defendant, and they agreed to split the difler- 
 ence, and that the purchase-money should be 3545^. The bargain was 
 made, according to the testimony of Shaw, without any reference to tlie 
 sale by auction at all. 
 
 The defendant then sent for the plaintift" to come to the defendant's 
 house, on the 27th of January, 1843, being two days after the sale, to 
 prepare the agreement between the defendant and Shaw ; and the plaintiff 
 and Shaw, on the 27th of January, 1843, came to the defendant's house, 
 when an agreement, to wliich the plaintiS" was an attesting witness, of 
 which the following is a copy, was copied by the defendant's daughter, at 
 the request of plaintiff, from a book of the plaintiff's. 
 
 " Memorandum. — That Mr William Shaw is declared the highest bidder 
 and purchaser of the Woolow estate, situate in the parish of Hope and town- 
 ship of Fairfield, in the county of Derby, at the sum of 3.54.5?., including 
 the timber plantations and tixtures on the premises ; at which sum the said 
 Mr William Shaw doth agree to become the purchaser thereof accordingly, 
 and doth also agree, on his part, to perform the before-written conditions 
 of sale ; and, in consideration thereof, Charlotte Lloyd, the vendor, doth 
 agree to sell and convey the said estate and premises unto the said Mr 
 William Shaw, his heirs and assigns, or as he or they shall direct, according 
 to the said before-written conditions of sale. And it is also agreed, that 
 the sum of 350Z. shall be paid as a deposit, which sum is to be considered 
 as part of the purchase-money. Dated this 27th day of January, 1843. 
 
 (Signed) "Charlotte Lloyd, 
 
 "John Poundall, 
 
 "Richard Shaw, \ Witnesses." 
 
 "John Brittain, 
 
 •I 
 
 'William Shaw. 
 
 There are no other conditions than those set out in the early part of 
 this case. 
 
 In March, 1843, the plaintiff duly made the return of the sale to the 
 proper officers of Excise, and that the estate was bought in by defendant 
 for 3800?., and duly verified and produced, and left, as required by the act 
 of Parliament, the notice of the said appointment of Poundall, Ac. ; and 
 also verified the fairness and reality of the transactions to the best of his 
 knowledge and belief, and did all other acts required by law by him to be 
 done, to get the duty on the said auction and sale allowed and remitted to
 
 SECT. VIl] RRITTAIN V. LLOYD. 375 
 
 the defendant ; luit the Commissioners of Excise refused to allow or remit 
 tlie same. 
 
 On the 22nd of March, 1843, the plaintifl" had an interview with the 
 defendant, in order to settle his account against the defendant for the sale 
 of the estate hereinbefore mentioned, and also for another sale the plaintiff 
 had had for the defendant. Some unpleasantness took place between the 
 plaintiff and defendant, in consequence of the defendant complaining of the 
 exorbitancy of the plaintiff's bill, alleging that tlie plaintiff had charged 
 her too much. The defendant said to the plaintiff, "You had thought to 
 have thrown the auction duty away ; but I would not let you." The 
 plaintiff told the defendant that he had not yet settled the sale account 
 with the Excise, and that when he did settle it, if the auction duty was 
 demanded of him, he should demand it of defendant ; to which the defen- 
 dant replied, "Then you must get it, and take it." 
 
 Ultimately, in September, 1844, the Commissioners of Excise, or the 
 persons duly authorised in that behalf, required the plaintiff to pay the said 
 auction duty, amounting to 107^. 3s. 9rf., in respect of the said sale of the 
 said estate above-mentioned, being the amount of duty on 3500Z., and 
 formally demanded the same of the plaintiff, which requisition and demand 
 was duly communicated to the defendant by the plaintiff, and she was 
 required to pay the amount, or to indemnify the plaintiff against proceed- 
 ings for the recovery of the duty, which was refused by the defendant. 
 Correspondence then took place between the plaintiff and defendant, and 
 the defendant and the Commissioners of Excise ; and ultimately the plaintiff 
 was compelled by the Commissioners of Excise to pay the above duty of 
 107Z. 3s. Qd. to the Commissioners of Excise, of which payment due notice 
 was given to the defendant, and she was required to pay the same to the 
 plaintiff, but which she refused ; and this action was brought to recover 
 that amount. 
 
 The question for the opinion of the Court is, whether the plaintiff is 
 entitled to recover the amount of the said auction duty. 
 
 The case was argued on the 17th of November, by 
 
 Whitehurst, for the plaintiff. — The plaintiff is clearly entitled to recover. 
 The duty imposed on sales by auction by the stat. 19 Geo. 3, c. 56, is, by 
 sect. 6, made payable on the knocking down of the hammer, and is thereby 
 declared to be chargeable on the auctioneer ; and tlie 7th section empowers 
 the auctioneer to recover the same by action of debt or on the case, against 
 his employer or the party on whose account the sale was made. Then 
 comes the 12th section, on which the question in this case mainly depends, 
 which enacts, that, where owners of estates bid for themselves, or employ 
 others to bid for them, an allowance of duties is to be made to them, 
 pro\'ided notice be given to the auctioneer thereof ; and in case of collusion 
 or unfair practice, the allowance is not to be made. Now, the facts of this 
 case shew clearly that this was not such a transaction as was contemplated 
 by that section, and in which it was intended to give the vendor relief ;
 
 376 BRITTAIN V. LLOYD. [CHAP. Ill 
 
 for this was a mere covert proceeding by the vendor, in order to screen her 
 from the payment of the duty. The plaintiif, therefore, ha\'ing paid the 
 duties under these circumstances, is entitled to recover back the amount 
 from liis employer. Moreover, the defendant has litigated this matter 
 before the Commissioners of Excise, who are the parties to determine 
 whetlier a fraud was committed or not, and they having decided the matter, 
 it is no longer open to discussion. 
 
 lluiiifrey, contra. — This action for money 2}aid is not maintainable'. 
 The auction duty is nowhere made chargeable upon the vendor ; but, on 
 the contrary, is expressly charged by the act of Parliament upon the auc- 
 tioneer. The defendant, therefore, was not liable to the Crown for the 
 auction duty, and therefore the money paid by the plaintiff to discharge it 
 was not money paid to the use of the defendant. The question has always 
 been, in considering whether an action for money paid could be maintained, 
 whether the defendant was liable to the payment, and whether the plaintiff 
 has been compelled to pay on his belialf. Spencer v. Parry" is, in point. There, 
 by the stipulations of a lease, the tenant was to pay the land-tax, which he 
 left unpaid during the term ; it was paid by the succeeding tenant, to whom 
 the landlord repaid it : and it was held, that, inasmuch as the tenant's 
 liability arose only from the special agreement between him and the land- 
 lord, the latter could not recover back from him the amount so repaid, in 
 an action for money paid, but must declare on the special agreement. The 
 plaintiff's counsel there relied on the cases of Broiiyn v. Hodgson^ and 
 Dazvson v. Lintoti* ; but Lord Denman, C. J., in delivering the judgment, 
 states and distinguishes those cases, and lays down the rule, that the pay- 
 ment, to sustain the action, must be a payment which relieves the defend- 
 ant from some liability. His Lordship says, "The only doubt we felt in 
 the course of the argument arose from the cases of Broxmi v. Hodgson and 
 Dawson v. Linton, which seemed nearly to resemble the present. In the 
 former case, the plaintiff, a carrier, ha\'ing by mistake delivered A.'s goods 
 to B., who made them his own, paid A. the price, and was afterwards 
 allowed to recover it from B. as money paid to his use. But this was in 
 fact money paid to his use, for it was in discharge of his debt to A. ; and 
 it may be fairly said to have been paid at his instance, because he knew 
 that the plaintiff's mistake, in delivering the goods to lum, made the 
 plaintiff liable to pay the price to the true owner. His so receiving the 
 goods may be considered as equivalent to saying, 'If you pay him, as you 
 may be compelled to do, for the goods, I will reimburse you.' In the case 
 before us, the defendant is not liable to pay the money to any one but the 
 plaintiff, and that was by virtue of the agreement. In Dawson v. Linton, 
 goods of the plaintiff, an outgoing tenant, left by him on his farm, were 
 distrained for a tax made payable by the tenant, but which the local act 
 
 ' This point was not stated for argument, and had not been adverted to by the 
 plaintiff's counsel. 2 3 Ad. & E. 331; 4 Nev. & M. 770. 
 
 3 4 Taunt. 189. ^ 5 B. <t Aid. 521.
 
 SECT. VIl] BRITTAIN V. LLOYD. 377 
 
 gave him power to deduct from liis rent. The plaintiff paid the tax to 
 redeem his goods, and the Court thought that money paid to the landlord's 
 use, because the landlord was ultimately liable. The defence was, that the 
 money was paid to the use of the tenant for the time being, who was 
 primarily liable. But here the plaintiff's payment relieved the defendant 
 from no liability but what arose from the contract between them. The 
 tax remained due by his default, which would give a remedy on the agree- 
 ment ; but it was paid to one who had no claim upon him, and therefore 
 not to his use." Dawson v. Linton is the only case which raises any doubt 
 on this point, and that was decided on its special circumstances ; and there 
 Abbott, C. J., says, "It is clear that this tax must ultimately fall on the 
 landlord, and that the plaintiff has paid his money in discharge of it ; he 
 has therefore a riglit to call upon the landlord to repay it for liim." In 
 Grissell v. Robinson^, one Peto agreed by parol to grant a lease to the 
 defendant for sixty years ; the defendant paid part of the consideration, 
 but Peto died before the contract was completed. The plaintiffs, Peto's 
 executors, then granted the lease, which recited that Peto's agreement had 
 been treated by the Court of Chancery as void, and that the lease was 
 granted pursuant to a proposal of the plaintiffs, thereinafter mentioned. 
 The plaintiffs having paid their own attorney his charge for drawing this 
 lease, it was held that they were entitled to recover them back from the 
 defendant in an action for money paid. But there Tindal, 0. J., says, "In 
 order to recover on that count, the plaintiffs must shew an express or 
 implied assent of the defendant to tlie payment of the money, or that it 
 was paid on compulsion for the use of the defendant. . . . The money was 
 paid by the plaintiffs, who were liable in the first instance, upon an implied 
 engagement in the defendant to repay them, because he was ultimately 
 liable." That case is therefore distinguishable as well from Spencer v. 
 Parry as from the present case, for here, as there, the defendant is not in 
 any way liable for the duty, except it be made under special agreement 
 with the plaintiff. In Lubbock v. Tribe', Parke, B., said that the action 
 for money paid could not be sustained in that case, "because the payment 
 of the money did not exonerate the defendant from any liability at all." 
 
 But, further, is the defendant liable to the plaintiff" at all ? The auc- 
 tioneer must look to the purchaser for the duty, and has no right to charge 
 the vendor with it. [Pollock, C. B. — The defendant is clearly liable in 
 some form or other.] 
 
 Whitehurst, in reply. — The defendant is liable in this form of action, 
 for she was ultimately liable to pay this money, inasmuch as the auctioneer, 
 by the 7th section of the act of Parliament, is entitled to recover back the 
 amount from her as his employer ; and it makes no difference that she was 
 not liable directly to the Cro^vn. In effect and substance, the principal, 
 not the agent, is the party chargeable. [Parke, B. — The auctioneer sued 
 
 > 3 Bing. N. C. 10; 3 Scott, 329. i" 3 M. <S; W. 607.
 
 378 BRITTAIN V. LLOYD. [CHAP. Ill 
 
 the vendor for money paid in Cruso v. Crisp', and this objection was never 
 taken.] So also in Capp v. Tophani". In Spencer v. Parry, the payment 
 was to a person who liad no claim whatever on the defendant, and therefore 
 not to his use. But here, the defendant being, by the express terms of the 
 statute, ultimately liable, the law implies a promise on her part to repay 
 the party primarily liable, and therefore gives an action for money paid, 
 according to the doctrine laid down in Broiun v. Hodgson and Dawson v. 
 Linton. It is sufficie]it that the defendant is bound in law to reimburse 
 the plaintiff; it is not necessary that there should be any direct liability 
 attaching to the defendant. Money paid by A. on the mere request of B., 
 may clearly be recovered back on the count for money paid ; and here a 
 request is implied by law. This case, therefore, in no degree conflicts with 
 the decision in Spencer v. Parry. 
 
 Cur. adv. vuU. 
 
 The judgment of the Court was now delivered by 
 
 Pollock, C. B. — This case was argued on Monday last. It was an 
 action by an auctioneer against the defendant, his employer, for the duty 
 which he had been obliged to pay to the Crown on a sale of her estate ; 
 and the form of action was for money paid. The Court intimated its 
 opinion, that it was clear that the defendant was liable, but took time to 
 consider whether this was the proper form of action. 
 
 It was argued by Mr. Humfrey, that this form of action could not be 
 maintained, unless the effect of the payment was to relieve the defendant 
 from some liability for the amount to the party to whom payment was 
 made, and that otherwise it could not be paid for the defendant's use ; and 
 he relied on the case of Spencer v. Parry" as an authority for that proposi- 
 tion ; and contended, that, as the defendant in this case was not made 
 liable to the Crown by the act of Parliament, the money was paid to one 
 who had no claim upon lier, and therefore not to her use. 
 
 This proposition, however, is not warranted by the decision of Spencer 
 V. Parry, though some expressions in the report of the judgment give a 
 countenance to the argument of the learned counsel ; nor can the proposi- 
 tion be maintained ; for it is clear, that, if one requests another to pay 
 money for him to a stranger, with an express or implied undertaking to 
 repay it, the amount, wlien paid, is a debt due to the party paying from 
 him at whose request it is paid, and may be recovered on a count for money 
 paid ; and it is wholly immaterial whether the money is paid in discharge 
 of a delit due to the stranger, or as a loan or gift to him ; on which two 
 latter suppositions the defendant is relieved from no liability by the pay- 
 ment. The request to pay, and the payment according to it, constitute the 
 debt ; and whether the request be direct, as where the party is expressly 
 desired by the defendant to pay, or indirect, where he is placed by him 
 under a liability to pay, and does pay, makes no difference. If one ask 
 
 ' 3 East, 337. a 6 East, 392. s 3 Adol. & Ell, 331.
 
 SECT. VIl] ROSCORLA V. THOMAS. 379 
 
 another, instead of paying money for him, to lend liim his acceptance for 
 his accommodation, and the acceptor is obliged to pay it, the amount is 
 money paid for the borrower, although the borrower be no party to the 
 bill, nor in any way liable to the person who ultimately receives the 
 amount. The borrower, by requesting the acceptor to assume that cha- 
 racter which ultimately obliges him to pay, impliedly requests him to 
 pay, and is as much liable to repay, as he would be on a direct request to 
 pay money for him witli a promise to repay it. In every case, there- 
 fore, in which there has been a payment of money by a plaintift' to a 
 third party, at the request of the defendant, express or implied, on a 
 promise, express or implied, to repay the amount, this form of action is 
 maintainable. 
 
 In tlie case of Spencer v. Parry, there was no such implied request. In 
 the case of Grissell v. Robinson, referred to in the argument, it was con- 
 sidered, and we think rightly, that there was ; and the Court of Queen's 
 Bench thought the decision of Brown v. Hodgson was to be supported on 
 the same ground. We have now to apply this doctrine to the facts of the 
 present case ; and we all think that the plaintiff, having been placed by 
 the defendant in the situation of being obliged to pay the auction duty to 
 the Crown, under circumstances in which the defendant was bound to 
 repay him, may be considered as having paid money to the Crown at her 
 request, and consequently may maintain this action. 
 
 Judgment for the plaintiff*. 
 
 * His Lordship afterwards added, — " I will take this opportunity of mentioning the 
 great inconvenience arising from the point not being stated for argument. The learned 
 counsel on one side was called upon to argue, and the Court to attend to the argument 
 of, a point, of the intention to argue which not the slightest intimation had been given ; 
 otherwise it could hardly have escaped the research of counsel, or the attention of the 
 Court, that one of the oldest and most common forms of action formerly, when bail 
 was more frequent than now, was an action for money paid, to recover the expenses the 
 bail were put to, although it is clear the principal never was in any degree Uable to 
 any part of the expense." 
 
 ROSCORLA V. THOMAS. 
 In the Queen's Bench, May 30, 1842. 
 
 [Reported in 3 Queen's Bench Reports, 234.] 
 
 Assumpsit. The declaration stated that, whereas heretofore, to wit 
 &c., in consideration that plaintiff, at the request of defendant, had 
 bought of defendant a certain horse, at and for a certain price 6ic., 
 to wit &c., defendant promised plaintiff that the said horse did not exceed
 
 380 ROSCORLA V. THOMAS. [CHAP. Ill 
 
 five years old, and was sound &c., and free from vice; nevertheless 
 defendant did not perform or regard his said promise, but thereby- 
 deceived and defrauded plaintiff in this, to wit, that the said horse, at 
 the time of the making of the said promise, was not free from vice, but, 
 on the contrary tliereof, was tlien very vicious, restive, ungovernable, and 
 ferocious ; whereby &o. 
 
 Pleas : 1. Non assumpsit. Issue thereon. 
 
 2. That the horse, at tlie time of the supposed promise, was free from 
 vice, and was not vicious, restive, ungovernable or ferocious, in manner 
 &c. : conclusion to the country. Issue thereon'. 
 
 On the trial, before Wightman, J., at the Cornwall Spring assizes, 
 1841, a verdict was found for the plaintiff on both the above issues. 
 In Easter term, 1841, Bompas, Serjt. obtained a rule nisi for arresting 
 the judgment on the first counf^. In last term^ 
 
 Frle and Butt shewed cause. The objection is, that the first count 
 states only a nudum pactum. But there is an executed consideration, 
 which, with a request, will support a promise. Now the request need not 
 be express : wherever the law will raise a promise, a request by the party 
 promising will be implied ; note (c) to Osborne v. Mogers*. Payne v. 
 Wilsoyi'' was the converse of the present case : there a consideration, 
 whicli in its form was executed, was declared on as executory ; and 
 this was held to be no variance, because in reality the consideration was 
 continuing. Here tlie declaration states an executed consideration 
 in form ; but it is, practically, executory, because the sale and 
 warranty would be coincident. In Thornton v. Jenyns^ the declaration 
 charged that, in consideration that plaintiff had promised to defendant, 
 defendant then promised plaintiff. It was objected that this was 
 an executed consideration witliout a request, which was insufficient 
 where the law would not raise a promise; and Brown v. Crump'^ 
 was cited: but tlie Court held that the two promises might be 
 considered as simultaneous, and that the objection therefore could not be 
 sustained". 
 
 Bompas, Serjt. and Slnde, contra. The warranty ought to be given at 
 the time of the sale : if made after, it is without consideration ; 3 Blackst. 
 Com. 166, Com. Dig. Action upon the Case for a Deceipt, (A 11), 
 Roswell V. Vaughan", Pope v. Lewyns'". Thornton v. Jenyns' was a case 
 
 1 There were other counts, on wliich issues were joined and found for the defendant. 
 
 2 The rule was also for entering a verdict, on the evidence, for the defendant; but 
 on this the Court did not decide. 
 
 3 AprU 28th, 1812. Before Lord Denman, C. J., Patteson, WUliams, and Wight- 
 mau, JJ. i 1 Wms. Saund. 264 a. 
 
 = 7 B. & C. 423. 6 1 Man. & G. 166. 7 1 Marsh. 567. 
 
 _ 8 It was also argued that the warranty might here, after verdict, be taken to be 
 comcident with the sale : to which it was answered that, if it were so, the evidence 
 negatived the declaration. 
 
 s Cro. Jac. 196. lo Cro. Jac. 630.
 
 SECT. VIl] EOSCOBLA V. THOMAS. 381 
 
 of mutual promises, which can never literally be made at the same 
 moment : here the declaration delinitely lays the perfect sale as 
 antecedent to and distinct from the warranty. And the warranty is 
 a matter not implied by law upon a sale; Parkinson v. Zee'. Even an 
 express promise without a legal consideration is invalid ; Collitis v. 
 Godefrey". In Hopkins v. Logan^ there was an executed consideration 
 from which a promise to pay on request would have arisen : and it was 
 holden that this did not support a promise to pay on a future day named. 
 [Patteson, J. referred to Hunt v. Bate*, as cited in Eastwood v. Kenyon'', 
 and to Lainph'iffh v. Brathwait^.^ 
 
 Cur. adv. vult. 
 
 Lord Denman, C. J., in this term (May 30th), delivered the judgment 
 of the Court. 
 
 This was an action of assumpsit for breach of warranty of the 
 soundness of a horse. The first count of the declaration, upon which 
 alone the question arises, stated that, in consideration that the plaintifij 
 at the request of the defendant, had bought of the defendant a horse for 
 the sum of 30/., the defendant promised that it was sound and free from 
 vice. And it was objected, in arrest of judgment, that the precedent 
 executed consideration was insufficient to support the subsequent promise. 
 And we are of opinion that the objection must prevail. 
 
 It may be taken as a general rule, subject to exceptions not applicable 
 to this case, that the promise must be coextensive with the consideration. 
 In the present case, the only promise that would result from the con- 
 sideration, as stated, and be coextensive with it, would be to deliver the 
 horse upon request. The precedent sale, without a warranty, though 
 at the request of the defendant, imposes no other duty or obligation upon 
 him. It is clear, therefore, that the consideration stated would not raise 
 an implied promise by the defendant that the horse was sound or free 
 from vice. 
 
 But the promise in the present case must be taken to be, as in fact it 
 was, express : and the question is, whether that fact will warrant the 
 extension of the promise beyond that which would be implied by law ; 
 and whether the consideration, though insufficient to raise an implied 
 promise, will nevertheless support an express one. And we think that it 
 ^vill not. 
 
 The cases in which it has been held that, under certain circumstances, 
 a consideration insufficient to raise an implied promise will nevertheless 
 support an express one, will be found collected and re\'iewed in the note 1 
 to fVennall v. Adney^, and in the case of Eastwood v. Kenyon'. They are 
 
 1 2 East, 314. MB.* Ad. 950. ^ 5M..&^. 241. 
 
 * 3 Dyer, 272 a. » 11 A. & E. 438, 452. 
 
 ' Hob. 105, 5th ed. See s. c, 1 Smith's LeadinR Cases, 67. 
 
 7 3 Bos. & Pul. 249. 8 11 A. & E. 438.
 
 
 382 LAMPLEIGH V. BRATHWAIT. [CHAP. Ill 
 
 cases of voidable contracts subsequently ratified, of debts barred by 
 operation of law, subsequently revived, and of equitable and moral 
 obligations, which, but for some rule of law, would of themselves have 
 been sufficient to raise an implied promise. All these cases are 
 distinguishable from, and indeed inapplicable to, the present, which 
 appears to us to fall within the general rule, that a consideration past 
 and executed will support no other promise than such as would be 
 implied by law. 
 
 The rule for arresting the judgment upon the first count must 
 therefore be made absolute. 
 
 Hide absolute. 
 
 LAMPLEIGH v. BRATHWAIT. 
 
 In the Common Pleas, Michaelmas Term, 1615. 
 
 [Reported in Eobart, 105; 1 Smith's Leading Cases, 67.] 
 
 Anthony Lampleigh brought an assumpsit against Thomas Brathwait 
 and declared, that whereas the defendant had feloniously slain one Patrick 
 Mahume ; the defendant, after the said felony done, instantly required 
 the plaintiff to labour, and do his endeavour to obtain his pardon from 
 the king, whereupon, the plaintiff, upon the same request, did, by all the 
 means he could and many days' labour, do his endeavour to obtain the 
 king's pardon for the said felony, viz. in riding and journeying at his own 
 charges from London to Roiston, when the king was there, and to London 
 back, and so to and from Newmarket, to obtain pardon for the defendant 
 for the said felony. Afterwards, sc. &c., in consideration of the premises, 
 the said defendant did promise the said plaintiff to give him 100^., and 
 that he had not, &c., to his damage 120^. 
 
 To this the defendant pleaded non assumpsit, and found for the 
 plaintiff, damage lOOl. It was said in arrest of judgment, that the 
 consideration was passed. 
 
 But the chief objection was, that it doth not appear that he did any- 
 thing towards the obtaining of the pardon, but riding up and down, and 
 nothing done when he came there. And of tliis opinion was my brother 
 (Warburton), but myself and the other two Judges were of opinion for the 
 plaintiff, and so he had judgment. 
 
 First, it was agreed, that a mere voluntary courtesy will not have 
 a consideration to uphold an assumpsit. But if that courtesy were moved 
 by a suit or request of the party that gives the assumpsit, it will bind ; 
 for the promise, though it follows, yet it is not naked, but couples itself
 
 SECT. VIl] LAMPLEIGH V. BUATHWAIT. 383 
 
 with the suit before, and the merits of the party procured by tliat suit, 
 which is the difference. Pasch. 10 Eliz., Dyer, 272. Hunt and Bates. 
 See Oneleij's case, 19 Eliz., Dyer, 355. 
 
 Then, as to the main point, it is first clear, that in this case upon 
 the issue non assumpsit, all these points were to be proved by the 
 plaintiti": 
 
 1. That the defendant had committed the felony, proui, i&c. 
 
 2. Then that he requested the plaintifT's endeavour, jirout, &c. 
 
 3. That thereupon the plaintiff made his proof, j)rout, (fee. 
 
 4. That thereupon the defendant made liis promise, prout, (fee. 
 
 For wheresoever I build my promise upon a thing done at my request, 
 the execution of the act must pursue the request, for it is Uke a case 
 of commission for this purpose. 
 
 So then the issue found ut supra is a proof that he did his endeavour 
 according to the request, for else the issue could not have been found : for 
 that is the difference between a promise upon a consideration executed 
 and executory, that in the executed you cannot traverse the consideration 
 by itself, because it is passed and incorporated and coupled with the 
 promise. And if it were not indeed then acted, it is nucium pactum. 
 
 But if it be executory, as, in consideration that you shall serve me a 
 year, I will give you ten pounds, here you cannot bring your action, till 
 the service performed. But if it were a promise on either side executory, 
 it needs not to aver performance, for it is the counter-promise, and not the 
 performance, that makes the consideration ; yet it is a promise before, 
 though not binding, and in the action you shall lay the promise as it was, 
 and make special averment of the service done after. 
 
 Now if the service were not done, and yet the promise made, pi-oiit, (fee, 
 the defendant must not traverse the promise, but he must traverse the 
 performance of the service, because they are distinct in fact, though they 
 must concur to the bearing of the action. 
 
 Then also note here, that it was neither required, nor promised to 
 obtain the pardon, but to do his endeavour to obtain it : the one was his 
 end and the other his office. 
 
 Now then, he hath laid expressly, in general, that lie did his endeavour 
 to obtain it, viz. in equiiando, (fee, to obtain. Now then, clearly, the 
 substance of this plea is general, for that answers directly the request, the 
 special assigned is but to inform the court ; and therefore, clearly, if, upon 
 the trial, he could have proved no riding nor journeying, yet any other 
 eflectual endeavour according to the request would have served : and 
 therefore, if the consideration had been, that he sliould endeavour in the 
 future, so that he must have laid his endeavour expressly, and had done it 
 as he doth here, and the defendant had not denied the promise, but 
 the endeavour, he must have traversed the endeavour in the genei'al, not 
 in the riding, <fec. in the special; which proves clearly, that is not the 
 substance, and that the other endeavour would serve. This makes it clear,
 
 384 KAYE V. DUTTON. [CHAP. Ill 
 
 that though particulars ouglit to be set forth to tlie court, and those 
 sufficient, whicli were not done, which might be cause of demurrer ; yet 
 being but matter of form, and the substance in the general, which is 
 herein the issue and verdict, it were cured by the verdict ; but the special 
 is also well enough ; for all is laid down for the obtaining of the pai-don 
 which is within the request ; and tliei-efore, suppose he had ridden to that 
 purpose, and Brathwait had died, or himself, before he could do any thing 
 else, or that another had obtained the pardon before, or the like, yet the 
 promise had holden. 
 
 And observe that case, 22 E. 4, 40. Condition of an Obligation, 
 to shew a sufficient discharge of an annuity, you must plead the certainty 
 of the discharge to the court. The reason whereof, given by Brian and 
 Choke, is, that the plea there contains two parts, one a trial per jjais, soil. 
 the writing of the discharge, the other by the court, soil, the sufficiency 
 and validity of it, which the jury could not try, for they agree, that if the 
 condition had been to build a house agreeable to the state of the obligee, 
 because it was a case all proper for the country to try, it might have 
 been pleaded generally : and then it was a demurrer, not an issue, as 
 is here. 
 
 KAYE V. DUTTON. 
 In the Common Pleas, June 29, 1844. 
 
 [Reimrted in 7 Manning <£■ Granger, 807.] 
 
 Assumpsit. The first count of the declaration stated, that, by a 
 certain agreement or instrument in writing made by the defendant, there- 
 tofore, to wit, on the 22nd of September, 1836, — after reciting that one 
 Whitnall, in his life-time, released and assured by deeds of the 30th and 
 31st of May, 1832, his freehold dwelling-houses and hereditaments at 
 Windsor, in Upper Parliament Street, in Toxteth Park, unto R. Rocklifl" 
 and H. BuUen, their heirs and assigns, by way of mortgage, to secure the 
 repayment of 3500Z. ; and also reciting that the said Rockliff and Bullen 
 required the said Whitnall to obtain tlie plaintiff to join him in a bond as 
 a collateral security further to secure the repayment of the said sum of 
 3500/. and interest ; and also reciting that the defendant had, since the 
 death of the said Whitnall, taken upon himself the management of the 
 estate of the said Whitnall, and had paid to the said Rockliff and Bullen 
 3370?. ; and also reciting that the said Bullen and Rockliff had called upon 
 the plaintiff for payment of the said mortgage, and he was surety for the 
 said Whitnall in the said bond, and that the plaintiff thereupon paid to the 
 said Bullen and Rockliff the sum of 130?. on the 1st of May 1835 ; and
 
 SECT. VIl] KAA'E V. DUTTON. 385 
 
 also reciting that the defendant liad repaid the phuntifl' the sum of 48^., 
 lea\nng due to him the sum of 82/., and that such last-mentioned amount 
 the defendant had agreed to repay to the plaintiff out of the moneys which 
 might arise from the sale of the said hereditaments and premises when tlie 
 same should be sold, and in tlie meantime to appropriate the rents of the 
 said hereditaments and premises towards payment of the same sum, as the 
 plaintiff had a lien on the said hereditaments and premises for the said 
 sum of 82/. ; and also reciting that the defendant had requested the 
 plaintiff to release and convey all liis estate and interest in the said 
 hereditaments and premises to Alison and Lenox, and that that he 
 had already done, reserving to himself a lien on the said property, as 
 aforesaid — It was by the said agreement or instrument in writing 
 witnessed, that, in consideration of the plaintifl's having paid to the said 
 Bullen and Rocklitf the said sum of 130/., in part discharge of the said 
 mortgage, and in consideration of the plaintiff's having released and 
 conveyed all his estate and interest in the said hereditaments to Alison and 
 Lenox (reserving to iiimself the said lien), and in order to secure to the 
 plaintiff the repayment of the said sum of 82/., he the defendant did 
 thereby for himself undertake and agree with the plaintiff, his executors, 
 administrators, and assigns, to pay to him or them the said sum of 82/., 
 with interest thereon, out of the proceeds to arise from the sale of the 
 said hereditaments and premises, when the same should be sold, and, in the 
 meantime, and until such sale was efl'ected, to appropriate the rents of the 
 said hereditaments and premises, in liquidation of the said sum so due to 
 the plaintiff as aforesaid ; as by the said agreement or instrument in 
 writing, reference being thereunto had, will appear : Averment, that, the 
 said agreement or instrument in writing being so made as aforesaid, he, the 
 defendant, in consideration of the premises, afterwards, to wit, on the 
 said 22nd of September, 1836, promised the plaintiff to observe and 
 perform the said agreement or instrument in writing, in all things therein 
 contained and on his the defendant's part to be observed and performed ; 
 that, after the said agreement or instrument in writing was made as 
 aforesaid, and liefore the said sale therein mentioned was effected, to wit, 
 on the 3Uth of September, 1836, and on divers other days between that 
 day and the commencement of the suit, the defendant received the said 
 rents in the said agreement or instrument mentioned, to a large amount, 
 to wit, to the amount of 2000/., which he could and might and ought, 
 according to the said agreement or instrument in that behalf, to have 
 appropriated in liquidation of, and which were sufficient to liquidate, the 
 said sum of 82/. so due to the plaintiff as aforesaid ; yet the defendant, 
 disregarding the said agreement or instrument and his said promise, 
 did not nor would, although theretofore, to wit, on the 1st of September 
 1839, requested by the plaintiff so to do, appropriate the said rents 
 so received by him as aforesaid, or any part thereof, in liquidation of the 
 said sum of 82/., so due to the plaintiff as aforesaid, or pay tlie same rents, 
 F. 25
 
 386 ' KAYE V. BUTTON. [CHAP. Ill 
 
 or any part thereof, to the plaintifi" on account, or in discharge, or 
 part discharge, of that sum of money, or other\vise howsoever, but wholly 
 refused so to do, and the last-mentioned sum of 821. is still whoUy 
 unliquidated, and wliolly due and unpaid to the plaintiff. 
 
 To tliis count the defendant pleaded amongst others two special pleas, 
 to the replications to which he demurred specially. Upon the argument 
 in Easter term last, however, the defendant abandoned the pleas, and 
 objected to the declaration. 
 
 Doiding, Serjt., for the defendant. Three objections arise on the 
 declaration : iirst, it discloses no consideration for the promise alleged ; 
 secondly, the consideration (if any) is a mere moral consideration ; 
 tliirdly, the consideration being executed, it can only sustain an implied 
 promise ' ; whereas the promise alleged is a different one, being an 
 express promise. 
 
 Construing tlie declaration most favourably for the plaintiff, it appears 
 that he having become surety for Whitnall, the mortgagor, paid 130^. to 
 the mortgagees ; that the defendant — who had taken upon himself the 
 management of Whitnall's estate, — had repaid him 48Z., and promised to 
 pay liim the residue out of the proceeds thereof ; and that the plaintiff, at 
 the request of the defendant, released and conveyed all his interest in the 
 premises to Alison and Lenox, reserving to himself a lien on the property. 
 This statement of facts does not disclose any consideration whatever 
 for the defendant's promise. The only interest the plaintiff ever had 
 in the premises was the lien, which entitled liim, in equity, to stand in the 
 position of the mortgagees. Coins v. Middkton-. The recital that the 
 defendant had released all his estate and interest in the property, except 
 his Hen, is in effect to say, that he had released nothing. Possibly the 
 consideration might have been good' if it had been alleged that the 
 plaintiff had executed some instrument purporting to convey an interest. 
 In Wilkinson v. Oliveira^, the declaration stated that, in consideration 
 that the plaintifl", at the request of the defendant, had given the defendant 
 a letter written by O., since deceased, by means of which letter the 
 defendant was enabled to, and did, determine controversies, and obtain a 
 large portion of O.'s effects, the defendant promised to give the plaintiff 
 lOOOi. ; and it was held that the declaration disclosed a sufficient con- 
 sideration to sustain an action on the promise. So here, if the declaration 
 had stated that the plaintiff had executed an assignment, it might have 
 been sufficient ; but the only consideration alleged is, the assigning of his 
 interest ; whereas he had none to convey. 
 
 Secondly. The only consideration that appears upon the face of the 
 declaration (if any) is a mere moral consideration, to which the law will 
 give no effect. A past consideration will not support a subsequent 
 promise; Jeremy v. Goochman", Barker v. HaU/ax\ Docket v. VoyeV. 
 
 1 Quffire. 2 Turn. & Buss. 224. 3 1 N. C. 490, 1 Sc. 461. 
 
 * Cro. EUz. 442. = lb. 741. 6 lb. 885.
 
 SECT. VIl] KAYE V. DUTTON. 387 
 
 The law does not, in truth, give effect to any but an executory', 
 consideration. It may be said tliat the consideration here is not simply 
 an executed consideration, because it is stated that the defendant had 
 requested the plaintiff to convey. But a mere I'cquest is of no avail. 
 Lampleiyh v. Braithwait'. The promise alleged and the promise implied 
 by law, must be co-extensive. Veitch v. RusselP. [Tindal, C. J. That 
 ease shews that a subsequent express promise will not convert that into a 
 debt which, of itself, was not a legal debt.] It establishes that an express 
 promise cannot be supported by a moral consideration. 
 
 Thirdly. If the court think that any promise can be implied from the 
 facts stated, it will not be the promise alleged. It is clear that an 
 executed consideration will only sustain such a promise as the law 
 will imply. Brown v. Crumps. In Gramjer v. Collins'', the declaration 
 (in assumpsit) stated, that whereas before and at the time of making the 
 agreement thereinafter mentioned, the defendant held the house and 
 premises thereinafter mentioned, for the residue of a term of years, 
 and thereupon afterwards, to wit, on &c., agreed to let to the plaintiff, who 
 then agreed to take of the defendant the said house and premises at 
 a certain rent ; and, in consideration of the premises, the defendant 
 promised the plaintiff that he should quietly hold and enjoy the said 
 house and premises during the said term, without any eviction from the 
 parties entitled to the reversion ; nevertheless he the plaintiff was evicted 
 by the party entitled to the reversion. The declaration was held bad on 
 demurrer, inasmuch as the plaintiff having declared on the simple relation 
 of landlord and tenant, no such duty as that laid on the defendant's 
 promise arose from that relation. So, in Hopkins v. Logan'^, it was held 
 that an executed consideration, whereon the law implies a promise to pay 
 on request (as, upon an account stated), is not sufficient to support 
 a promise to pay at a future day. Parke, B., there said : "The promise 
 which arises in law upon an account stated is, to pay on request, 
 and any other promise is nuduvi pactum, unless made upon a new 
 consideration." Alderson, B. said : " The consideration is clearly executed, 
 and the promise which the law implies thereon is, to pay on request. In 
 order to convert that promise into a promise to pay at a future day, there 
 must be a new consideration." And Maule, B. said : " I agree, tliat an 
 executed consideration is no consideration for any other promise than that 
 which the law would imply ; if it were, there would be two co-existing 
 promises on one consideration." Here, the plaintiff must proceed on the 
 promise implied by law ; and if the coui-t cannot iniply any promise at all, 
 or if it cannot imply the promise laid clearly, tlie declaration is bad. 
 Jackson v. Cobbin^. In Roscorla v. Thomas', the declaration (in assumpsit) 
 
 ' i.e. executory in its inception. - Hob. 105, Sir F. Moore, 866. 
 
 5 3 Q. B. 928, 3 G. & D. 198. « 1 Marsh. 567, 6 Taunt. 300. 
 
 5 6 M. & W. 4.38. « 5 M. & W. 241. 
 
 ' 8 M. & W. 790, 1 Dowl. (n. s.) 06. » 3 Q. B. 234, 2 Gale & D. 508. 
 
 2.5 2
 
 388 KAYE V. DUTTON. [CHAP. Ill 
 
 stated that, therctoforo, to ^\■it, on tlie 29th of September, 1840, in con- 
 sideration that the plaintifl' at the request of the defendant had bought of 
 tlie defendant a certain horse at a certain price, to wit, 301. the defendant 
 promised tlie plaintiff that the horse was sound and free from vice. It was 
 held, in arrest of judgment, that the promise appeared to have been made 
 in respect of a precedent executed consideration ; that it must be taken to 
 have been an express promise, but that no express promise on such a con- 
 sideration, though executed at request, could extend beyond the promise 
 which the law would imply while the consideration was executory ; that 
 at the time of the sale the only implied promise was to deliver the horse 
 on request, and that, after the sale, therefore, there was no consideration 
 for the subsequent express promise of warranty. 
 
 Channell, Serjt., contra. The declaration is good. The defendant's 
 promise being laid to have been made in consideration of the premises, 
 that is, of all that is stated in the foregoing part of the declaration, it is 
 submitted that the facts alleged disclose a sufficient legal consideration. 
 Admitting that a mere moral consideration ordinarily will not sustain a 
 promise, here a legal consideration is appai'ent. If the defendant had any 
 estate or interest to convey, his parting with it at the defendant's request, 
 would be an ample consideration : and upon this declaration it is not 
 competent for the defendant to say that the plaintiff did not release some 
 interest in the mortgaged premises. Having paid money as surety for 
 the mortgagor he would stand in his place, and if any interest can 
 be inferred beyond the lien, there is a good consideration. The difficulty 
 arises on the words "reserraig to himself a lien on the said property." 
 The fair meaning of that is, that the plaintiff had given up his lien so far 
 as regarded Alison and Lenox, but preserved it as between himself and 
 the defendant. As to the second point, the rule upon this subject is well 
 laid down in 1 Wms. Saund. 264, n., where it is said that "a past 
 consideration is not sufficient to support a subsequent promise, unless 
 there was a request by the party, either express or implied, at the time of 
 performing the consideration' ; but where there is an express request at 
 the time, it will in all cases be sufficient to support a subsequent pi-omise." 
 Here, what is treated as a past consideration is stated to have been done 
 because of the defendant's request. Cases have been cited to shew that 
 the past consideration here stated, does not support the particular 
 promise alleged in the declaration : but those cases are distinguishable ; 
 as, in all of them, the promise implied by law differed widely from 
 that alleged on the face of the declaration. The question how far 
 a moral consideration will support a subsequent express promise, is 
 discussed by Lord Denman, in Eastwood v. Kenyon~. Here, looking at 
 the whole declaration, a sufficient consideration appears for the promise 
 laid. ' Cur. adv. vult. 
 
 1 1 Man. & Gr. p. 266, n. 
 
 = 11 Ad. & E. 438, 3 P. & D. 276.
 
 SECT. VIl] KATE V. DUTTON. 389 
 
 TiNDAL, Cf. J., now delivered the judgment of the court. Tfiis was a 
 declaration in assumpsit upon a special agreement, to wliich the defendant 
 pleaded, amongst others, two special pleas, namely, thefourtli and fifth 
 pleas, to which the plaintifi' demurred ; and the defendant demurred 
 specially to the plaintiff's replication to the third plea. But it is 
 unnecessary to advert to the particular state of the pleadings, as it was 
 admitted by my brother Dowling, on the argument for tlie defendant, 
 upon an objection taken to the fourtli and tiftli pleas, that he could not 
 support those pleas, and the whole argument before us turned on the 
 sufficiency of the declaration. 
 
 Two objections were made to the declaration — first, that it did not 
 shew any consideration for the promise by the defendant ; secondly, that 
 the promise was laid in respect of an executed consideration, but was not 
 such a promise as would have been implied by law from that consideration ; 
 and that, in point of law, an executed consideration will support no 
 promise, although express, other tlian that which the law itself would have 
 impKed. The cases cited by the defendant, viz. Brown v. Crump ', Granger 
 V. Collins', Hopkins v. Logan^, Jackson v. Cobbin'', and Roscorla v. Thomas'^, 
 certainly support that proposition to this extent, — that, where the con- 
 sideration is one from which a promise is by law implied, there no express 
 promise made in respect of that consideration after it has been executed, 
 differing from that which by law would be implied, can be enforced. But 
 those cases may liave proceeded on the principle that the consideration was 
 exhausted by the promise implied by law, from the very execution of it ; 
 and, consequently, any promise made afterwards must be nudum pactum, 
 there remaining no consideration to support it. But the case may, perhaps, 
 be different where there is a consideration from which no promise would be 
 implied by law ; that is, where the party suing has sustained a detriment 
 to himself or conferred a benefit on the defendant, at his request, under 
 circumstances which would not raise any implied promise. In such cases 
 it appears to have been held, in some instances, that the act done at 
 the request of the party charged, is a suflicient consideration to render 
 binding a promise afterwards made by him in respect of the act so done. 
 Hunt V. Bate^, and several cases mentioned in tlie margin of the report of 
 that case, seem to go to that extent : as also do some others collected 
 in RoLL Abr. Action sur Case (Q)'. But it is not necessary that we 
 should pronounce any opinion upon that point ; for, assuming it to be 
 sufiiciently alleged that tlie plaintiff released and conveyed his interest at 
 the request of the defendant, yet it does not appear that he had any 
 interest which passed by such release and conveyance. The declaration is 
 founded on an agreement wliich recites that a certain estate had been 
 
 1 1 Marsh, 567, 6 Taunt. 300. = 6 M. & W. 458. 
 
 3 5 M. & W. 241, 7 Dowl. 360. ^ 8 M. & W. 790, 1 Dowl. (n. s.) 96. 
 
 5 3 Q. B. 234, 2 Gale & D. 508. « Dyer, 272. 
 
 ' 1 Eoll. Abr. 11; translated, 1 Vin. Abr. 279.
 
 390 KATE V. BUTTON. [CHAP. Ill 
 
 mortgaged by one Wliitnall, since deceased ; and that tlie plaintiff 
 had joined in a bond as a coUateral security for tlie mortgage-money, and 
 had afterwards been compelled to pay off a portion of it ; that the 
 defendant had taken upon himself the management of Whitnall's affairs, 
 had repaid to the plaintiff part of the money which he had paid, and had 
 agreed to pay him the residue out of the proceeds of the mortgaged 
 property when sold, and in the meantime to appropriate the rents of the 
 premises to the payment of the same sum as that for which the plaintiff 
 had a lien on the said premises. Thus far there is nothing to shew that 
 the plaintiff had any other interest than this lien. The agreement then 
 recites that the defendant had requested the plaintiff' to release and convey 
 his interest to Alison and Lenox, and that he had done so, reserving 
 to himself a lien on the property as aforesaid, that is, reserving to himself 
 the only interest that he is shewn to have had. The agreement then 
 proceeds to state that, in consideration of the plaintiff ha\'ing paid 
 the money and having released and conveyed all his estate and interest to 
 Alison and Lenox, reserving to himself the said lien, the defendant under- 
 took and agreed, &c. Now, the payment of the money by the plaintiff 
 would be no considei'ation for the defendant's promise ; and the alleged 
 release and conveyance was again no consideration, for it does not appear 
 that the plaintiff parted with any thing by it. For the plaintiff it was 
 contended, that he must be taken to have parted with his lien on the 
 property, reserving only his right to call upon the defendant to pay the 
 residue still due to the plaintiff, out of the proceeds of the estate, when 
 sold, and, in the meantime, to appropriate the rents to the same object. 
 But we cannot put that construction upon the agreement, which expressly 
 speaks of the lien reserved as the same lien which the plaintiff" had before. 
 Such being in our judgment the effect of the agreement set out in the 
 declaration, the case resembles that of Edwards v. Baugh^. There, 
 the declaration alleged that certain disputes and controversies were pend- 
 ing between the plaintiff and defendant, as to whether the defendant was 
 indebted to the plaintiff' in a certain sum of money ; and that thereupon, 
 in consideration that the plaintiff would promise the defendant not to sue 
 him for the recovery of the said sum in dispute, but would accept a 
 smaller sum in full satisfaction, the defendant promised to pay such 
 smaller sum. On general demurrer, the declaration was held bad, 
 because it did not allege that any debt was due from the defendant to the 
 plaintiff, or that an action had been commenced for the recovery of any 
 sum claimed. So, in the present case, as the declaration does not shew 
 that the plaintiff' had any interest in the premises except that which he 
 reserved, it does not appear that his release and conveyance, although 
 executed at the defendant's request, formed any legal consideration for the 
 promise alleged to have been made by the latter. Our judgment must 
 therefore be for the defendant. Judgment for the defendant. 
 
 1 11 M. & W. 641.
 
 SECT. VIl] VICTORS V. DAVIES. 391 
 
 VICTORS V. DAVIES. 
 
 In the Exchequer, April 22, 1844. 
 
 [Reported in 12 Meeson <£• WeUbij, 758.] 
 
 Assumpsit. The declaration stated, that the defendant, on the 
 6th of March, 1844, was indebted to tlie plaintiff in the sum of £10, for 
 money lent by the plaintiff to the defendant. 
 
 Special demurrer, assigning tlie following causes : — Tliat it is not 
 alleged in the declaration that the money was lent to the defendant at his 
 request, and tliat therefore there is no consideration to support tlie 
 promise ; nor does it sufficiently appear that the defendant was indebted 
 to the plaintiff. 
 
 Pearson, in support of the demurrer. — The declaration is insufficient 
 for want of the averment that the money was lent to the defendant " at 
 his request." [Alderson, B., — How can there be a lender unless there be 
 also a borrower X\ A plaintiff is bound to allege a request, wherever tlie 
 consideration is executed. In the notes to Osborne v. Rogers^ it is said 
 that "a past consideration is not sufficient to support a subsequent 
 promise, unless there was a request of the party, either express or implied, 
 at the time of performing tlie consideration." And, in a note by the 
 learned editors of the fifth edition, it is added, " So, even an affidavit (to 
 hold to bail) of debt for money lent and for goods sold and delivered, and 
 for work and labour, has been held irregular, because it omitted to state 
 that it was ' at the instance and request of the defendant,' altliough it 
 stated that it was 'to and for his use and on Ids account ;'" for which 
 they cite Durnford v. Messiter^. In Chitty on Pleading^, it is also said, 
 " In each of these counts upon an executed consideration, except tliat for 
 money had and received, and tlie account stated, it is necessary to allege 
 that the consideration of the debt was performed at the defendant's 
 request, tliough such request might, in some cases, be implied in evidence." 
 [Parke, B. — There is a very learned note of my Brother Manning on this 
 subject*, in which lie goes into the whole law with respect to alleging a 
 request, and points out the error into wliich Mr. Serjeant Williams 
 appears to have fallen in his comment upon Osborne v. Rogers. The note 
 is thus : " The consideration being executory, the statement of the request 
 in the declaration, tliougli mentioned in the undertaking, appears to have 
 been unnecessary. In Osborne v. Rogers, the consideration of a promise is 
 laid to be, that the said Robert, at the special instance and request of the 
 said William, would serve the said William, and bestow his care and 
 labour in and about the business of the said William ; and the declaration 
 
 1 1 Saund. 264, n. 1. = 5 M. i- Selw. 446. 
 
 ^ Vol. 1, p. 353, 7th ed, ■> 1 Man. & Gr. 265.
 
 
 392 FLIGHT V. EEED. [CHAP. Ill 
 
 alleges, that Robert, confiding in the said promise of William, afterwards 
 went into the service of William, and bestowed his care and labour in and 
 about ifec. Here the consideration is clearly executory, yet Mr. Serjeant 
 Williams, in a note to the words 'at the special instance and request,' 
 says, ' these words are necessary to be laid in the declaration, in order to 
 support the action. It is held, that a consideration executed and past, — 
 as, in the present case, the service performed by the plaintiff for the testator 
 in his lifetime, for several years then past, — is not sufficient to maintain 
 an assumpsit, unless it was moved by a precedent request, and so laid.' 
 The statement, according to modern practice, of the accrual of a debt for, 
 or the making of a promise for the payment of, the price of goods sold and 
 delivei'ed, or for the repayment of money lent, as being in consideration 
 of goods sold and delivered, or money lent to the defendant, at his request, 
 is conceived to be an inartificial mode of declaring. Even where the 
 consideration is entirely past, it appears to be unnecessary to allege a 
 request, if the act stated as the consideration cannot, from its nature, 
 have been a gratuitous kindness, but imports a consideration per se. It 
 being immaterial to the right of action whether the bargain, if actually 
 concluded and executed, or the loan, if made, and the monies actually 
 advanced, was proposed and urged by the buj'er or by the seller, by the 
 borrower or by the lender. Vide Rastall's Entries, tit. ' Dette ; ' and 
 Co. Ent., tit. 'Debt.'" There cannot be a claim for money lent unless 
 there be a loan, and a loan imports an obligation to pay. If the money is 
 accepted, it is immaterial whether or not it was asked for. Tlie same 
 doctrine will not apply to money paid ; because no man can be a debtor 
 for money paid, unless it was paid at his request. What my Brother 
 Manning says, in the note to which I have referred, is perfectly correct.] 
 
 Pollock, C. B. — There cannot be a doubt about this case ; the 
 statement that the money was lent implies that it was advanced at the 
 request of the defendant. There must be judgment for the plaintiff. 
 
 Parke, B., Alderson, B., and Rolpe, B., concurred. 
 
 Judgment for the plaintiff. 
 
 FLIGHT V. REED. 
 In the Exchequer, January 21, 1S63. 
 
 [Reported in 1 HurUtone cfc Coltman, 703.] 
 
 Declaration on six bills of exchange, drawn in the years 1855 and 
 1856, by the plaintiff upon and accepted by the defendant.
 
 SECT. VIl] FLIGHT V. REED. 393 
 
 Plea. — That before the making of the said bills of exchange in the 
 declaration mentioned, or any or either of them, to wit, on the 31st day of 
 October, a. d. 18-1:5, it was corruptly and against the form of the statute 
 in that behalf made and provided, agreed between the plaintiff and 
 
 defendant, and one Robinson, that the plaintiff should lend and 
 
 advance to the defendant and the said Robinson a certain sum of 
 
 money, to wit, 1500/., and that the plaintiff should forbear and give day 
 
 of payment to the defendant and the said Robinson, until a day 
 
 theii to come, to wit, until tlie bills of exchange next hereinafter mentioned 
 should become due and payable, and that for such forbearance the 
 
 defendant and the said Robinson should pay to the plaintiff more 
 
 than lawful interest at the rate of 51. per centum per annum, upon the 
 said sums of money so lent and forborne by the plaintiff to the defendant, 
 that is to say 100?. And that for securing the repayment of the said sum 
 
 of 1500/. and interest, tlie defendant and the said Robinson should 
 
 accept and deliver to the plaintiff certain bills of exchange, drawn by 
 the plaintiff upon them, whereby they should engage to pay to the plaintiff 
 or his order 1600/., ten weeks after the date thereof and of the said loan. 
 And the defendant further says, that in pursuance of the said unlawful 
 agreement the plaintiff accordingly, to wit, on the day and year aforesaid, 
 
 made the said loan and advance to the defendant, and the said 
 
 Robinson, and they then accordingly accepted bills of exchange, drawn by 
 the plaintiff on them for the sum of 1(500/., payable as aforesaid. And 
 that save as aforesaid there never was any consideration for the acceptance 
 by the defendant of the said last mentioned bills of exchange, or any or 
 either of them. And the defendant further says that tlie said bills were 
 dishonoured at maturity, and that the bills of exchange in the declaration 
 mentioned were accepted and given, after the passing of the statute 
 17 & 18 Vict. c. 90, by way of renewal of the said other bills of 
 exchange, to secure the payment to the plaintiff of the money secured by 
 the said other bills of exchange so given to the plaintiff as aforesaid, 
 including the said sum of 100/. heretofore mentioned, and in the said 
 other bills included as interest as aforesaid ; and that save as aforesaid 
 there never was any value or consideration for the acceptance by the 
 defendant of the bills of exchange in the declaration mentioned, or any or 
 either of them. 
 
 Demurrer, and joinder therein. 
 
 Lush (Philbrick with him), in support of the demurrer. — The 3 4 4 
 Wni. 4, c. 98, s. 7, exempted from the operation of the usury law, bills of 
 exchange and promissory notes payable at or within three months after 
 date. The 7 Wm. 4 & 1 Vict. c. 80 extended the exemption to bills and 
 notes not having more than twelve months to run. That enactment was 
 continued by the :) (fe 3 Vict. c. 37, s. 1, which excepted from its operation 
 loans on the security of land. The 17 & 18 Vict. c. 90, which pa.ssed in 
 the year 1854, entirely repealed the usury law. This plea is bad for not
 
 394 FLIGHT V. REED. [CHAP. Ill 
 
 alleging that the original bills were given while the usury law was 
 in force : ThihauU v. Gibson'. But even assuming that tliey were, the 
 bills declared on were given after the usury law was repealed, and 
 therefore they are not affected by the previous illegal contract. [Martin, B. 
 The 12 Anne, stat. 2, c. 16, rendered an usurious contract utterly void; 
 then what consideration is there for the new bills ?] By the 2nd section 
 of the 17 & 18 Vict. c. 89, it is provided "that nothing herein contained 
 shall prejudice or affect the rights or remedies of any person, or diminish 
 or alter the liabilities of any person, in respect of any act done previously 
 to the passing of this Act." Therefore, as the original bills were void at 
 the time they were given they could not now be enforced, but the receipt 
 of money which the defendant was under a moral obligation to repay is a 
 sufficient consideration to support a new contract after the usury law was 
 repealed. Barnes v. Hedle.y' decided tliat after usurious securities given 
 for a loan have been destroyed by mutual consent, a promise by the 
 borrower to repay the principal and legal interest is founded on a sufficient 
 consideration, and is binding. Wicks v. Gogerley^ is an authority to 
 the same effect. So in Wright v. Wheeler'^ where an obligee cancelled 
 a bond by wliich usurious interest was payable, and the obligor gave 
 him another bond for principal and legal interest only, Lawrence, J., 
 ruled that it was valid. [Martin, B. It appears by the report in 
 Camp. 157, that Barnes v. Hedley was first tried before Chambre, J., 
 and he ruled that, if money is lent at usurious interest, a subsequent 
 contract to repay the principal with legal interest was void under the 12 
 Anne, stat. 2, c. 16.] Though the contract is void, the original debt is a 
 sufficient consideration to support a new promise. [Pollock, C. B., 
 referred to Fitzroy v. Gwillim''.] Mather v. Lo7-d Maidstone'' shews that 
 a person may be liable on a new security although the one for which it was 
 substituted could not be enforced against him. 
 
 Macnamara, in support of the plea. At the time the original bills 
 were given an usurious contract was not only void but also illegal, for the 
 person who received money under it was subject to a penalty of treble the 
 value. The 3 & 4 Wm. 4, c. 98, s. 7, and 7 Wm. 4 & 1 Vict. c. 80, do not 
 affect this question, because they only created an exemption in certain 
 cases from the penalties imposed by the 12 Anne, stat. 2, c. 16; and 
 therefore it is sufficient for the defendant to shew that the contract was 
 usurious within that statute, and if the plaintiff relies on the exemption, 
 that should come by way of replication : Thibault v. Gibson^, Washbourn v. 
 Barrows'', Berry v. TuU'\ It appears that the bills declared on were 
 drawn and accepted in the years 1855 and 1856, and therefore after the 
 usury law was repealed by the 17 & 18 Vict. c. 90; but the plea shews 
 that they were accepted to secure the payment of money lent upon an 
 
 » 12 M. & W. 88. 2 2 Taunt. 184. 3 By. & M. 123. 
 
 •• 1 Camp. 165, note. ^ i t j{_ 153 6 ig C. B. 273. 
 
 ' 1 Exch. 107. 8 5 Exeh. 741.
 
 SECT. VIl] FLIGHT V. REED. 395 
 
 usurious contract, and secured by bills given while the usury law was in 
 force. Therefore the substituted bills were tainted with the original 
 usurious contract, and that being void, there was no consideration 
 for them. The case falls within the 2nd section of the 17 ife 18 Vict. c. 
 90, wliich preserves all rights and liabilities in resjDect of transactions 
 previous to that Act. There is no new contract, but merely a renewed 
 security for payment of money under an usurious contract. [Wilde, B. — 
 If, before the usury law was repealed, the parties to an usurious contract 
 destroyed the securities, and made a new contract to pay the principal and 
 legal interest, that contract was valid, then why is not a new contract 
 valid since the usury law has been altogether repealed ^] Barnes v. 
 Iledlei/' is distinguishable on two grounds : first, the destruction of the 
 usurious securities by mutual consent was a sufficient consideration to 
 support a new promise ; and secondly, the promise was to pay the 
 principal and legal interest. Here the bills declared on were given to 
 secure payment of the usurious interest. Where a bill of exchange 
 tainted with usury was in the hands of an innocent holder, and, on being 
 informed of the usury, he took a fresh bill in lieu of it, drawn by one of 
 the parties to the usurious contract, and accepted by a third person for his 
 accommodation, it was held that the holder could not maintain an action 
 against the acceptor of the substituted bill : Ghai^inan v. Blade''. 
 [Pollock, C. B. If the innocent holder of a promissory note made for an 
 usurious consideration took from the maker of it a bond for payment of 
 the amount, the bond was valid ; Cuthhert v. Haley^. Channell, B. — The 
 58 Geo. 3, c. 93, enacts that no bill of exchange or promissory note given 
 upon an usurious contract shall be void in the hands of an indorsee for 
 valuable consideration without notice.] Cuthhert v. Haley does not 
 support the proposition contended for. There the Court expressed an 
 opinion that a substituted security given for a security tainted with usury 
 is void if given to a party to the original contract. Wicks v. Gogerley* is 
 an authority in favour of the defendant, for it decided that a new promise 
 to pay the principal originally lent on an usurious agreement is invalid, 
 unless all payments beyond legal interest are repaid or deducted. Here 
 the substituted security is for the principal and usurious interest. The 
 receipt of the money under the usurious contract is no consideration for a 
 new promise to pay it. There is a distinction between cases where there 
 is a moral consideration for payment of a debt not enforceable at law, as 
 where an infant after attaining his majority promises to pay a debt 
 contracted during infancy, and where a statute has expressly declared 
 that a particular contract shall be illegal and void. In the former case 
 the duty constitutes a sufficient consideration for a promise to pay the 
 debt, but in the latter, the contract being declared void and an ofl'ence at 
 law, there can be no consideration for any new promise. 
 
 Cur. adv. vult. 
 > 2 Taunt. 184. ^ 2 B. & Aid. 588. ^ 8 T. li. 390. ■• B. & Moo. 123.
 
 396 FLIGHT V. REED. [CHAP. Ill 
 
 The learned Judges having differed in opinion, in the ensuing Term 
 (May 8) the following judgments were delivered. 
 
 Martin, B. This is a demurrer to a plea. The action is upon several 
 bills of exchange. The plea is that, before the making of the bills 
 declared on, it was corruptly and against the form of the statutes 
 agreed between the plaintiff and the defendant and one Robinson that 
 the plaintiff should lend them 1,500/., and that he should forbear and 
 give day of payment to them until a future day, and that for such for- 
 bearance they should pay to him more than lawful interest at the rate 
 of 5/. per cent, per annum upon the sum so lent and forborne, and 
 that for securing the repayment of the said sum of 1,500/. and interest, 
 the defendant and Robinson should accept and deliver to the plaintiff 
 certain bills of exchange drawn by the plaintiff upon them, whereby 
 they engaged to pay to the plaintiff, or his order, 1,600/. ten weeks 
 after the date therefor and of the loan ; that in pursuance of the said 
 unlawful agreement the plaintiff made the loan, and the defendant and 
 Robinson accepted the bills, and tliat save as above there was no con- 
 sideration for these acceptances ; that these bills of exchange were 
 dislionoured at maturity, and that the bills of exchange declared on were 
 given, after the passing of the Statute 17 & 18 Vict. c. 90, by way 
 of renewal of the said first-mentioned bills, and accepted to secure the 
 payment to the plaintiff of the money secured by the first-named bills 
 so given to the plaintiff and the said usurious interest, and that save 
 as aforesaid there was not any value or consideration for the accept- 
 ance by the defendant of the bills sued on. 
 
 The plea disclosed this state of things, viz., that, when the loan was 
 made and the first bills of exchange given, the statute 12 Anne, Stat. 
 2, 0. 16, was in operation, but that when the bills of exchange declared 
 on were given the statute 17 & 18 Vict. c. 90, had passed. The latter 
 statute repeals *the statute of Anne ; but the second section provides 
 that nothing in it shall prejudice or affect the rights or remedies, or 
 diminish or alter tlie liabilities of any person in respect of any act done 
 previous to its passing. The original loan and bills of exchange were 
 therefore left unaffected by it. The statute of Anne enacts that no 
 person upon any contract shall take for a loan of money above 51. per 
 cent, for a year, and that all contracts for payment of any principal 
 so lent shall be utterly void, and that any person who shall take above 
 5/. per cent, for a year shall forfeit and lose for such offence treble the 
 value of the money lent. The loan was therefore an illegal transaction, 
 and the original contract to repay it and the bills of exchange given for 
 it were utterly void ; and the plea states that save these there was no 
 other consideration for the bUls declared on. 
 
 It is quite clear that a bill of exchange is a simple contract ; it and 
 promissory notes differ from other simple contracts in this, that prima 
 facie they import consideration ; but when it is proved that there was 
 
 J
 
 SECT. VIl] FLIGHT V. REED. 397 
 
 no consideration, or an illegal one, the l)ill of exchange or note is of 
 no avail. It does seem superfluous to cite any authority for the above 
 positions, but in my brother Byles' book upon Bills, page 111 (8th 
 edition), it is stated that the defendant is at liberty in all cases (when 
 the issue raised admits of it) to show aflBrniatively, by his own wit- 
 nesses, absence or failure of consideration ; and again, page 1 24, the 
 consideration given for a bill must not be illegal ; and at page 132, if 
 part of the consideration of a bill be illegal, the instrument is vitiated 
 altogether; and at page 288 usury is said to be an indictable misde- 
 meanour at common law, for which Comyn's Digest, title Usury, is 
 cited. Now the consideration for the bills declared on was the usurious 
 loan, and the bills of exchange given to secure it. But the statute of 
 Anne has declared these to be utterly void ; and, speaking for myself, I 
 cannot understand how an utterly void and illegal contract or transac- 
 tion can be a legal consideration for a new contract. But the case 
 does not rest here ; for at page 294 the same learned author states that 
 if an usurious bill be in the hands of a holder who was a party to the 
 usurious transaction, and he gives it up for a substituted security, the 
 original usurious taint infects the subsequent security, and either is void. 
 Now applying the above statement of the law, the consequence seems to me 
 inevitable that the bills of exchange sued on are not of avail in the hands 
 of the plaintiff, who was the usurious lender, and that the plea is good. 
 
 But a case of Barnes v. Hedley' was cited. According to the state- 
 ment in the report, a person called Webb had agreed to lend money at 
 51. per cent, interest, but with a proviso that he should also receive a 
 commission of 51. per cent, upon sugars to be bought of him or pro- 
 vided by him, and certain deeds and securities were given to him to 
 secure the balance due. It was admitted at the trial that this was an 
 usurious contract, but it was proved that in consequence of its being 
 intimated to Webb that it was so, it was agreed that Webb should 
 make out fresh accounts, leave out all the usurious charges, charge only 
 for the principal money and legal interest, and that the original deeds 
 and securities in the possession of Webb should be given up and can- 
 celled. Webb accordingly made out such fresh accounts, in which he 
 omitted the usurious charges, and the balance sought to be recovered 
 in the action was composed of the principal moneys actually advanced, 
 with lawful interest fairly and legally calculated, the whole commission 
 and every objectionable charge being omitted. The account was deli- 
 vered to the debtor, who acknowledged the balance, and promised to 
 pay it, and thereupon the deeds and securities originally given to Webb 
 were produced and cancelled and burnt in the presence of the debtor. 
 The Court of Common Pleas held that the balance so arrived at and 
 promised to be paid was recoverable at law, and so certified to the 
 Lord Chancellor, the case being an issue from chancery. I cannot my- 
 
 1 2 Taunt. 184.
 
 398 PLIGHT V. REED. [CHAr. Ill 
 
 self see the application of this case to the present. If it had appeared 
 upon tiie record that tlie plaintifl' and defendant had accounted together 
 and struck off the usurious interest, and the latter had given the biUs 
 declared on for the amount of the original loan and legal interest, it 
 would have been an authority in favour of the plaintifi'; but nothing of 
 the kind appears upon the plea : indeed the contrary appears, for the 
 bills declared on are stated to have been given to secure the payment 
 to the plaintiff of the money secured by the bills of exchange given 
 to him in furtherance of the illegal and corrupt contract, and that 
 there was no other consideration for them. The case has been put thus : 
 That when the bills declared on were given, there was no usury law, 
 and it was competent for the defendant to pay or contract to pay 
 interest to any extent, and that the bills were lawful, assuming them to 
 have been given for a loan then made. This is quite true, but it has 
 no application to the real and true case under consideration. There 
 was no loan after the repealing statute was passed. There was no 
 correction of the original unlawful transaction. There is nothing what- 
 ever shewn on the record except bills given upon and in respect of a 
 transaction which the law had declared to be utterly void, and which 
 at one time seems to have been considered an indictable crime. 
 
 Another case was cited, Wrif/ht v. Wheeler, which will be found in 
 a note to Barnes v. Hedley^. This was an action upon a bond. Tliere 
 had been an usurious contract, but afterwards the parties agreed that 
 some usurious interest which had been paid should be deducted from 
 the principal, and a bond given for the balance of the principal, with 
 lawful interest. Mr. J. Lawrence was of opinion at nisi prius that the 
 bond was lawful. The parties, he said, had rectified their error, and 
 substituted for an illegal contract one which was fair and legal. The 
 case has no bearing upon the present. There is here no substitution of 
 a legal contract for an illegal one ; it is a mere continuance of the old 
 unlawful contract. Cuthhert v. Haley ' is to the same effect. 
 
 A case of Wichs v. Gogerley^ was also cited by the leading counsel for 
 the plaintiff; but according to the statement of the law laid down there 
 by C. J. Best, the plaintiff' is not entitled to recover. He says the 
 principle is, that where parties to an usurious agreement "state an account 
 and agree upon the sum which would be due for principal and legal 
 interest, after deducting all that has been paid beyond legal interest, and 
 a fresh promise is made to pay that sum, such promise is free from the 
 original usury and is perfectly vaHd in law. But in order to bring this 
 case within the principle, all beyond legal interest must be repaid or 
 deducted." In the report of Barnes v. Hedley in 1 Campbell, which I have 
 before referred to, there is a judgment of Mr. J. Chambre, which seems 
 to me to be well worthy of consideration by any one who desires to 
 ascertain what is the true law upon this subject. There is also a case 
 1 1 Camp. 165. = 8 T. K. 30O. » h. & Moo. 123. 
 
 I
 
 SECT. VIlJ FLIGHT V. REED. 399 
 
 which was not mentioned in the argument, Preston v. Jackes ', whicli was 
 tried before Mr. J. Holroyd, who held that a pai-ty could not recover 
 on a note whicli operated as a security for any usurious interest. This 
 case seems to me in point for the defendant ; and any opinion of Mr. J. 
 Holroyd, wherever given, is entitled to the greatest weight and is of the 
 highest authority. 
 
 The result is, that in my opinion an usurious loan within the statute of 
 Anne, and usurious interest contracted to be paid for it, is not a good 
 consideration for a bill of exchange, and that a bill given upon such 
 consideration is not of avail ; and this opinion does not contravene the 
 case of Barnes v. Hedley, reported in 2 Taunton, or any other case or 
 authority which I have met with or has been referred to ; but on the 
 contrary, in my opinion, is in conformity with them all. 
 
 Pollock, C. B. Tlie judgment which I am about to deliver is that of 
 my brother Wilde and myself. 
 
 My brother Martin having stated the pleadings, it is not necessary to 
 repeat them. 
 
 The real question raised by this demurrer is, whether there is a good 
 consideration for the bills declared upon. 
 
 The original bills were given for an advance of money with usurious 
 interest at a time when such a transaction was forbidden by law, and were 
 therefore void and of no legal obligation. 
 
 The bills sued on were given since the repeal of the usury law, and at 
 a time when the giving or confirming an obligation to pay any amount of 
 interest, however high, was perfectly legal and binding. 
 
 But the altered law did not render valid the original bills; they were 
 void when given, and remained void and of no legal obligation up to the 
 time when they were renewed by the bills in question. 
 
 The original bills therefore could not form a legal consideration for 
 those now sued upon ; indeed there was, when the fresh bills were given, 
 no legal obligation whatever upon the defendant to repay a single farthing 
 of the large advance he had received. But for that advance he has 
 voluntarily given these bills, and whether the law ^vill permit and enforce 
 such a contract is the question. 
 
 During the existence of the usury law the courts of law were bound 
 to enforce them, — to deal with interest above the statute rate as an 
 unlawful and forbidden thing, — and to discover and defeat all attempts, 
 direct or indirect, to give or enforce it. 
 
 But the legislature has since repealed the laws against usury, and upon 
 a fuller and wider view of public policy declared the rate of interest on 
 loans to be unlimited and free. 
 
 The courts of law are bound with equal fidelity to give effect to this 
 new and opposite view of the legislature. Interest above bl. per cent, 
 should no longer be regarded as of necessity illegal or unrighteous, and no 
 
 ' 2 Stark. 237.
 
 400 FLIGHT V. REED. [CHAP. Ill 
 
 facility should be given to escape from an obligation to repay a real advance 
 of money, or evade a contract willingly made, though interest should have 
 been contracted for, which used to be at a rate called usurious rate. 
 
 We make these remarks, because in argument the expression " taint of 
 an usurious transaction " was often repeated, and the Court was pressed 
 in language, commonly and properly used while the usury laws were in 
 force, to give no countenance to a contract of which the origin was an 
 advance of money with more than 51. per cent, interest. 
 
 Such remai-ks have no application to or bearing on a contract made 
 like that in question since the usury laws have been repealed. 
 
 We therefore pass them by to consider the true question in the case, 
 viz., whether an advance of money under such circumstances as to create 
 no legal obligation at the time to repay it can constitute a good considera- 
 tion for an express promise to do so. 
 
 Such a consideration has been sometimes called a moral consideration. 
 And we think unfortunately so ; for the term used as a definition tends to 
 include too wide a range of olrjects. 
 
 And there are many conjunctures in which a man may feel himself 
 morally bound to pay money and promise to do so, which the law would 
 not recognise as forming a good consideration. 
 
 But a loan of money is a very diflerent thing. The very name of a 
 loan imports that it was the understanding and intention of both parties 
 that the money should be repaid. 
 
 And though at the time of the advance the law, for reasons of public 
 policy, forbid any liability, and incapacitate the parties from making a 
 binding contract, there is no reason why a binding contract should not be 
 made afterwards if the legal prohibition be removed. 
 
 And the consideration which would have been sufficient to support the 
 promise, if the law had not forbidden the promise to be made originally, 
 does not cease to be sufficient when the legal restriction is abrogated. 
 
 There is, therefore, reasonable ground, as it seems to us, for this 
 qualified proposition, viz. — That a man by express promise may render 
 himself liable to pay back money which he has received as a loan though 
 some positive rule of law or statute intervened at the time to prevent the 
 transaction from constituting a legal debt. 
 
 There is likewise authority for it. The general doctrine within which 
 such a proposition falls is, we believe, first found promulgated in Lord 
 Mansfield's time. It is the subject of a long note to the report of the case 
 of Wennallv. Adney'. It has been the subject of much discussion in many 
 subsequent cases. It was stated most widely, and perhaps too widely, in 
 the case of Lee v. Miiggeridye- . And it has consequently been much 
 qualified and sometimes disparaged since: see Eastwood v. Eenyon^ ; 
 Beaumont v. Reeve* ; Cocking v. Ward^. 
 
 1 3 Bos. & P. 249. 2 5 Taunt. 45. 3 11 A. & E. 447. 
 
 * 8 Q. B. 487. 5 1 c. B. gyo.
 
 SECT. VIl] FLIGHT V. REED. 401 
 
 But it was repeated and stated to be undoubted law by Baron Parke, 
 in Earle v. Oliver', who says: "The strict rule of the common law was 
 no doubt departed from" by Lord Mansfield in Hawkes v. Saunders* 
 and Atkiim v. I/ill'. The principle of the rule laid down l)y Lord 
 Mansfield, is, that where tlie consideration was originally beneficial to 
 the party promising, yet if he be protected from liability by some pro- 
 vision of the statute or common law meant for his advantage, he may 
 renoimce the benefit of that law ; and if he promises to pay the debt, 
 which is only what an honest man ought to do, he is then bound by law to 
 perform it. 
 
 There is a very able note to the case of Wennall v. Adney^ explaining 
 
 > 2 Exch. 71, 89. = Cowp. 290. •' Cowp. 284. 
 
 ^ 3 B. & P. 249. The note is as follows :— 
 
 "An idea has prevailed of late years that an express promise, founded simply on 
 au antecedent moral obligation, is sufficient to support an assumpsit. It may be worth 
 consideration, however, whether this proposition be not rather inaccurate, and whether 
 that inaccuracy has not in a great measure arisen from some expressions of Lord Mans- 
 field and Mr. Justice BuUer, which, if construed with the qualifications fairly belong- 
 ing to them, do not warrant the conclusion which appears to have been rather hastily 
 drawn from thence. In Atkins v. Hill, Cowp. 288, which was assumpsit against an 
 executor on a promise by him to pay a legacy in consideration of assets. Lord Mans- 
 field said: 'It is the case of a promise made upon a good and valuable consideration 
 which in all cases is a sufficient ground to support au action. It is so in cases of obli- 
 gations which would otherwise only bind a man's conscience, and which without such 
 promise he could not be compelled to pay.' And in Haickes v. Saunders, Cowp. 290, 
 which was a similar case with Atkins v. Hill, Lord Mansfield said that the rule laid 
 down at the bar ' that to make a consideration to support an assumpsit there must be 
 cither an immediate benefit to the party promising, or a loss to the person to whom the 
 promise was made,' was too narrow, and observed 'that a legal or equitable duty is 
 a sufficient consideration for an actual promise ; that where a man is under a moral 
 obligation, which no court of law or equity can enforce, and promises, the honesty and 
 rectitude of the thing is a consideration.' His Lordship then instanced the several 
 cases of a promise to pay a debt barred by the Statute of Limitations, a promise by a 
 bankrupt after his certificate to pay au antecedent debt, and a promise by a person of 
 full age to pay a debt contracted dm'ing his infancy. The opinion of Mr. .Justice 
 BuUer in the last case was to the same effect, and the same law was again laid down 
 by Lord Mansfield in Trueman v. Fcnton, Cowp. .544. Of the two former cases it 
 may be observed that the particular point decided in them has been overruled by the 
 subsequent case of Decks v. Strutt, 5 T. E. 690. And it may further be observed, 
 that however general the expressions used by Lord Mansfield may at first sight 
 appear, yet the instances adduced by him as illustrative of the rule of law do not 
 carry that rule beyond what the older authorities seem to recognize as its proper limits ; 
 for in each instance the party bound by the promise had received a benefit previous 
 to the promise. Indeed it seems that iu such instances alone as those selected by 
 Lord Mansfield will an express promise have any operation, and there it only becomes 
 necessary because, though the consideration was originally beneficial to the party 
 promising, yet, inasmuch as he was not of a capacity to bind himself when he received 
 the benefit, or is protected from liability by some statute provision, or some stubborn 
 rule of law, the law will not, as in ordinary cases, imply an assumpsit against him. 
 The same observation is applicable to Trueman v. Fenton, that being an action against 
 a bankrupt on a promise made by him subsequent to his certificate respecting a debt 
 
 F. 26
 
 402 FLIGHT V. REED. [CHAP. Ill 
 
 tliis at length. The instances given to illustrate the principle are, amongst 
 others, the case of a debt barred by certificate and by the Statute 
 
 due before the certificate. There is, however, rather a loose note of a case of Scott 
 V. ^'ehon, Westminster Sittings, 4 Geo. 3, cor. Ld. Mansfield (see Esp. N. P. i»15), m 
 which his Lordship is said to have held a father bound by his promise to pay for the 
 previous maintenance of a bastard child. And there is also an anonymous case 
 2 Show. 184, where Lord C. J. Pembertou ruled that 'for meat and drink for a 
 bastard child an indebitatus assumpsit will lie.' Although the latter case does not 
 expressly say that there was a previous request by the defendant, yet that seems to 
 have been the fact, for Lord Hale's opinion is cited to shew 'that where there is com- 
 mon charity and a charge,' the action will lie; which seems to imply that if a charge 
 be imposed upon one person by the charitable conduct of another, the latter shall pay ; 
 aud though he adds, ' and undoubtedly a special promise would reach it,' that expres- 
 sion does not necessarily import a promise subsequent to the charge being sustained, 
 but may be supposed to mean that, where a party is induced to undertake a charge by 
 the engagement of another to pay, the latter will certainly be liable even though he 
 should not be so where the charge was only induced by his conduct without such 
 engagement. The case of Watson v. Turner, BuU. N. P. 147, has somethnes been 
 cited in support of what has been supposed to be the general principle laid down by 
 Lord Mansfield, because in that case overseers were held bound by a mere subsequent 
 promise to pay an apothecary's bill for care taken of a pauper ; but it may be observed 
 that 'this was adjudged not to be nudum pactum, for the overseers are bound to pro- 
 vide for the poor ; ' which obligation, being a legal obligation, distinguishes the case. 
 Indeed in a late ease of Atkins v. Banwell, 2 East, 505, that distinction does not seem 
 to have been sufficiently adverted to; for ]Vatson v. Turner was cited to shew that a 
 mere moral obhgation is sufficient to raise an impUed assumpsit, and though the court 
 denied that proposition, yet Lord EUenborough observed that the promise given in 
 the case of ]]'atson v. Turner made all the difference between the two cases, without 
 alluding to another distinction which might have been taken; viz., that though the 
 parish officers were bound by law in Watson v. Turner, the defendants in the principal 
 case were not so bound, because the pauper had been reheved by the plaintiffs as 
 overseers of another parish, though belonging to the parish of which the defendants 
 were overseers. In the older cases no mention is made of moral obligation ; but it 
 seems to have been much doubted whether mere natural affection was a sufficient 
 consideration to support an assumpsit, though coupled with a subsequent express 
 promise. Indeed Lord Mansfield appears to have used the term, ' moral obhgation,' 
 not as expressive of any vague and undefined claim arismg from nearness of relation- 
 ship, but of those imperative duties which would be enforceable from law, were it not 
 for some positive rule, which, with a view to general benefit, exempts the party in 
 that particular instance from legal liabiUty. On such duties, so exempted, an express 
 promise operates to reWve the liability and take away the exemption, because, if it 
 were not for the exemption, they would be enforced at law through the medium of an 
 implied promise. In several of the cases it is laid down, that to support an assumpsit 
 the party promising must derive a benefit, or the party performing sustain an in- 
 convenience occasioned by the Plaintifi'. Per Coke and all the Justices, Hatch and 
 Capel's case, Godb. 203 ; per Eeeve, J. Mar. 203 ; per Coke, C. J., and Dodderidge, J., 
 8 Bulst. 162 ; and per Coke, C. J., 1 Roll. Kep. 61, pi. 4. And in Lampleigh v. Brath- 
 wait. Hob. 105, it was resolved ' that a mere voluntary curtesy wQl not have a 
 consideration to uphold an assumpsit. But if that courtesy were moved by a suit or 
 request of the party that gives the assumpsit, it will bind ; for the promise, though it 
 follows, is not naked, and couples itself with the suit before, and the merits of the 
 party procured by that suit.' And in Bret v. J. S. and his wife, Cro. Eliz. 755, where 
 the first husband of the wife sent his sou to table with the plaintiff for three years at
 
 SECT. Vll] FI.KiHT )'. KKEI). 403 
 
 of Limitations, and the rule in these instances has been so constantly 
 followed, that tiiere can be no doubt that it is to be considered as 
 the established law." 
 
 £8 per annum, and died within tlie year, and the wife during her widowhood, in 
 consideration that the son should continue tlie residue of the time, promised to pay the 
 plaintiff £(5 13s. id. for the time past, and £8 for every year after, and upon which 
 promise the plaintiff brouyht his action ; the court held that natural affection was not 
 of itself a sufficient ground for an assumpsit; for although it was sufficient to raise an 
 use, yet it was not sufficient to ground an action without an express quid pro quo : but 
 that as the promise was not only in consideration of affection but that the son should 
 afterwai'ds continue at the plaintiff's table, it was sufficient to support a promise. 
 In Harford v. Gardiner, 2 Leo. 30, it was said by the court, that love and friendship 
 are not considerations to found actions upon, and in Best v. Jolly, 1 Sid. 38, where a, 
 father was held liable for his own and his son's debt, because he had promised to pay 
 them if the plaintiff Avould forbear to sue for them, yet the court said, ' he was not 
 liable for his son's debt,' but having induced forbearance, which is a damage to the 
 plaintiff, he was held Uable, ' though as to the son's debt it was no benefit to the 
 defendant.' So in Besfich v. Coggil, Palm. 559, it was debated whether the defendant 
 was liable upon an express promise to repay the plaintiff money laid out by him in 
 Spain for the defendant's son, and the charges of his funeral, Hyde, C. J. and \Vhiteloek 
 being of opinion that the action could not be maintained; Jones and Dodderidge e 
 contra that it could. The former of which it should seem was the better opinion ; for 
 in Butcher v. Andrews, Cartli. 446, on assumpsit for money lent by the plaintiff to the 
 defendant's son at his instance and request, and verdict for the plaintiff, the judgment 
 was arrested, Holt, C. J. saying, ' if it had been an indebitatus for so much money paid 
 by the plaintiff at the request of tlie defendant unto his son, it might have been good, 
 for then it would be the father's debt and not the son's ; but when the money is lent to 
 the son, it is his proper debt, and not the father's.' But in Church v. Church, B. E. 
 1656, cit. Sir T. Ray. 260, where defendant promised to repay the plaintiff the charges 
 of his son's funeral, the latter was held entitled to recover, though no request was laid 
 in the declaration. Of which case it may be observed, that possibly after verdict the 
 court presumed a request proved ; for in Hayes v. Warren, 2 Str. 933, though the court 
 would not presume a request after judgment by default, yet they said they would have 
 presumed it after verdict. However, in Style v. Smith, cited by Popham, J., 2 Leon. 
 Ill, it was determined that if a physician in the absence of a father give his son 
 medicine, and the father in consideration thereof promise to pay him, an action will 
 lie for the monej'. But the case of Style v. Smith, if closely examined, will not perhaps 
 be found so discordant with the principle laid down in Bret v. J. S. and his Wife as 
 may be sujiposed. From the expression ' in the absence of a father,' used in that case, 
 it may be inferred that the son lived with the father, and that the medicine was 
 administered to the son in the house of the father, while the latter was absent, from 
 whence it results that the physician's debt, though not founded on any unmediate 
 benefit to the father, or on his request, was most probably founded on his credit; 
 which credit, if fairly inferred from circumstances by the physician, might operate 
 to charge the father in the same way as his request would operate, the physician 
 having sustained a loss in consequence of that credit. Indeed if any of the cases could 
 be sustained on the principle that a father is, by the mere force of moral obligation, 
 bound to pay what has been advanced for his son, because he has subsequently 
 promised to pay it ; by the same rule the son should be liable for the debt of the father 
 upon a similar promise ; for the same moral obligation exists in both oases. Yet in 
 Barber v. Fox, 2 Saund. 136, the court arrested the judgment in an action of assumpsit 
 on a i)romise made by the defendant, to avoid being sued on a bond of his father, it not 
 being alleged that the defendant's father had bound huuself and his heirs ; for they 
 
 26—2
 
 404 FLIGHT V. REED. [CHAP. Ill 
 
 Tlie case of Fitzroy v. Givillim' is an example of the view that has 
 been taken of tlie subject even in a court of law ; but although that 
 case is certainly not law, it is quite true that courts of equity have 
 relieved (where their interference was wanting) only on the terms of the 
 principal and legal interest being paid. 
 
 We think the view we have taken receives considerable support 
 from the case of Barnes v. Hedley-, which, if not a direct authority for 
 the plaintiff, is somewhat similar in its circumstances; the usurious 
 interest- was in that case struck out, but now, since the repeal of the 
 statute of Anne, there is notliing unlawful in usurious interest. Here the 
 defendant says, " I could not then make the promise. I can now and I 
 am willing to do so." 
 
 The plaintiff is therefore, in our opinion, entitled to the judgment 
 of the court. 
 
 Judgment for the plaintiff. 
 
 refused to intend even after verdict that the bond was in the usual form, and 
 consequently held the promise of the defendant nudum pactum, he not appearing to 
 have been liable to be sued upon the bond. And this last case was confirmed in Hunt 
 v. Swain, 1 Lev. 165; Sir T. Ray. 127; 1 Sid. 2-18; see note 2 to Barber v. Fox, by 
 Mr. Serjt. Williams. Indeed it is clear from Loyd v. Lee, 1 Str. 94, and Cockshott v. 
 Bennett, 2 T. E. 763, that if a contract between two persons be void, and not merely 
 voidable, no subsequent express promise will operate to charge the party promising, 
 even though he has derived a benefit from the contract. Yet according to the 
 commonly received notion respecting moral obligations, and the force attributed to a 
 subsequent express promise, such a person ought to pay. An express promise, 
 therefore, as it should seem, can only revive a precedent good consideration, which 
 might have been enforced at law through the medium of an im.plied promise, had it not 
 been suspended by some positive rule of law, but can give no original right of action, 
 if the obligation on which it is founded never could have been enforced at law, though 
 not barred by any legal maxim or statute provision. In addition to the cases already 
 collected upon this subject, it may be observed, that in Mitchinson v. Hewson, 7 T. R. 
 348, the court of King's Bench, upon the authority of Drue v. Thome, All. 72, held a 
 husband not liable to be sued alone for the debt of his wife contracted before marriage, 
 though the objection was only taken in arrest of judgment, and consequently a promise 
 by hun to pay the debt appeared upon the record. From whence this principle may be 
 extracted: that an obligation to pay in one right, even though it be a legal obligation, 
 and coupled mth an express promise, will not support an assumpsit to pay in another 
 right." — Ed. 
 
 1 1 T. E. 153. = 2 Taunt. 184.
 
 CHAPTER IV. 
 
 CAPACITY OP PARTIES. 
 SECTION I. 
 
 INFANTS. 
 
 Ex imrte KIBBLE. 
 
 In the Court of Appeal in Bankruptcy, March 11, 1875. 
 
 [Bcporferf in Law Reports, 10 Chancery Appeals, 373.] 
 
 This was an appeal from a decision of Mr. Registrar Hazlitt, sitting as 
 Chief Judge in Bankruptcy. 
 
 On the 5th of November, 1874, a joint debtor's summons was issued 
 against Mr. A. P. L. Onslow by four creditors for four separate debts, 
 namely, Emanuel Emanuel, for 258^. 3s. '2d. ; W. Kibble, for 53i?. ISs. 7c?.; 
 H. C. Green, for \il. lis.; and R. A. Green, for 291. 6s. 
 
 The consideration for all these debts was jewelry and money supplied 
 to A. P. L. Onslow during his infancy. He attained his majority on 
 the 25th of August, 1874. 
 
 Kibble's debt, on whicli the adjudication of bankruptcy was eventually 
 founded, was for a dishonoured bill of exchange dated tlie ISth of 
 May, 1874, and drawn in liis favour by A. P. L. Onslow on his mother 
 for 501., payable at four montlis after date, in consideration of jewelry 
 and advances of money. After he attained his majority. Kibble brought 
 •an action against him in the Court of Queen's Bench, under tlie Bills 
 of Exchange Act (18 & 19 Vict. c. 67); and on the 22nd of October, 
 1874, obtained a judgment against liim by default for the amount claimed 
 in the debtor's summons. 
 
 It was admitted that Kibble, when he supplied the jewelry and 
 money, knew that Onslow was an infant. 
 
 The debtor was warned by the summons that unless he complied witli 
 it he would have committed an act of bankruptcy, in respect of which he 
 might be adjudged a bankrupt on a bankruptcy petition being presented 
 by the said E. Emanuel, W. Kibble, H. C. Green, and R. A. Green.
 
 406 kibble's case. [chap, iv 
 
 The debtor filed an affidavit in whicli lie swore tliat he wa.s not 
 indebted to the creditors in the aggregate sum claimed, and that the 
 whole of the debts were contracted by him before he attained the 
 age of twonty-one years, and were not necessaries, and that the debts had 
 not been ratified by him since he attained his majority. 
 
 On the hearing of the summons on the 8th of December, 1874, 
 the Registrar ordered that, upon the debtor entering into the usual bond 
 for such sum as E. Emanuel should recover in an action against him, and 
 upon payment of the sum of 5'il. 18s. Id. within three days to Kibble, all 
 proceedings under the summons should be stayed as regarded these debts, 
 and that all proceedings should be stayed with regard to the other 
 debts, witliout security, till after actions had been brought for recovering 
 the several debts. 
 
 The debtor not having paid Kibble his debt of 53Z. 18«. 7d. within the 
 time limited, he filed a petition for adjudication of bankruptcy against 
 him founded on the debtor summons, the other creditors not joining in 
 the petition. 
 
 Mr. Registrar Hazlitt was of opinion that there was no petitioning 
 creditor's debt by reason of tlie infancy of the debtor at the time 
 when the goods were supplied, and he accordingly dismissed the petition ; 
 and from this decision Kibble appealed. 
 
 INIr. F. C. Willis, (Mr. Roxburgh, Q.C. with him), for the Appel- 
 lant : — 
 
 We rely upon the judgment obtained against the debtor after he 
 attained his majority. We admit that the Court of Bankruptcy will 
 sometimes investigate the consideration for a judgment, but that is only 
 in cases where fraud or collusion has been proved. In the present 
 case there was nothing of the kind. Mr. Onslow's mother was aware 
 of all the circumstances, and accepted the bill drawn by him. But 
 if the judgment in this case can be opened, there was good consideration 
 for it. The Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), which 
 came into operation on the 7th of August, 1874, only applies to contracts 
 made after the passing of the Act, and therefore does not touch either the 
 original debt or the bill of exchange in this case. The bill is therefore 
 not void, but only voidable ; and althougli Onslow miglit have pleaded his 
 infancy in the action, he did not do so, and the judgment operates 
 as a ratification of the contract. 
 
 Mr. Winslow, Q.O. (Mr. Bagle.y with him), for the bankrupt : — 
 
 There are two objections to this adjudication. First, that the alleged 
 petitioning creditor's debt was void ; and, secondly, that the debtor's 
 summons could not support the petition. As to the first point, it is 
 clear that the Court of Bankruptcy is not bound by a judgment at 
 law, but is in the habit of investigating the consideration for it : Ex 
 pmrte Bryant'; Ex parle Maraon'. If otherwise, a debtor might elude all 
 1 X V. & B. 211, 214. 2 3 Mont. & A, 155.
 
 SECT, i] kibble's case. 4()7 
 
 his just creditors by allowing judgments to be taken by default against 
 him by friends. In the present case there would have been no con- 
 sideration to support the judgment, even before the Infants' Relief 
 Act, 1 874, as it was founded on the bill of exchange, and a bill of 
 exchange signed by an infant has always been held absolutely void, 
 because an infant cannot trade : Smith on Contracts'. But even if 
 there w^as a consideration before the late Act, it is now taken away. 
 It is true that the 1st section only applies to contracts made after 
 the passing of the Act, but tlie 2nd section prevents any valid ratifica- 
 tion being made of contracts made in infancy, and that section applies 
 equally to ratifications of contracts entered into before or after the 
 Act'. 
 
 In the second place, we say that the petition for adjudication was 
 irregular. Four creditors joined in tlie debtor's summons. There is 
 no authority in the Act for this ; but if several creditors do join 
 in a debtor's summons, they ought to join in the petition for adjudi- 
 cation. 
 • Mr. Willis, in reply, referred, on the first point, to Harris v. 
 WalP; Ex parte Prescott* ; and, on the second point, to Forms 
 4, 5, and 6, in the schedule annexed to the Bankruptcy Rules, 1870, 
 which contemplate more than one creditor joining in tlie debtor's 
 suunnons. 
 
 Sib "W. M. James, L. J. : — 
 
 I am of opinion that the decision of the Registrar in tliis case was 
 quite right. It is the settled rule of the Court of Bankruptcy, on whicli 
 we have always acted, that the Court of Bankruptcy can inquire 
 into tlie consideration for a judgment debt. There are obviously strong 
 reasons for this, liecause the object of the bankruptcy laws is to procure 
 the distribution of a debtor's goods among his just creditors. If a 
 judgment were conclusive, a man might allow any number of judgments 
 to be obtained by default against him by his friends or relations without 
 any debt being due on them at all ; it is therefore necessary that 
 
 1 Page 209. 
 
 - 37 & 38 Vict. c. 62, s. 1: "All contracts, whether by specialty or by simple con- 
 tract, henceforth entered into by infants for the repayment of money lent or to be lent, 
 or for goods supplied or to be supplied (otber than contracts for necessaries), and all 
 accounts stated with infants, shall be absolutely void: provided always that this enact- 
 ment shall not invalidate any contract into whieli an infant may by any existing or 
 future statute, or by the rules of common law or equity, enter, except such as now by 
 law are voidable." 
 
 Sect. 2: "No action shall be brought whereby to charge any person upon any 
 promise made after full age to pay any debt contracted during infancy, or upon any 
 ratification made after full age of any promise or contract made during infancy, whether 
 there shall or shall not be any new consideration for such promise or ratification after 
 full age." 
 
 » 1 Ex. 122. ■" 1 M. D. & D. 199.
 
 408 kibble's case. [chap, iv 
 
 the consideration of the judgment sliould be liable to investigation. 
 In the present case a bill of exchange had been drawn by an infant 
 for jewelry purcliased and money advanced to him. It is not pre- 
 tended tliat there was any ratification of the original debt or of the 
 bill of exchange after the infant came of age, until the judgment was 
 allowed to go by default against him, under the Bills of Exchange 
 Act. The only question, therefore, is, whetlier tlie consideration for 
 the judgment has not been taken away by the Infants' Relief Act, 
 1874. The first section enacts that all contracts thenceforth entered 
 into by infants shall be absolutely void ; and then the 2nd section 
 provides that no action shall be brought upon any promise made after 
 full age to pay any debt contracted during infancy, or upon any 
 ratification made after full age of any promise or contract made during 
 infancy. Wlien the Act says that no action shall be brought, it must 
 mean that the promise or ratification shall not be a good cause of 
 action : so that a ratification made after tlie Act of a contract made 
 in infancy before the Act is as void as a contract made by an infant after 
 the Act. Therefore, on this ground, I think the Registrar came to a 
 right conclusion. 
 
 But as the other question, respecting the form of the summons and 
 the petition for adjudication, has been raised before us, it is right to 
 express our opinion on that also. It appears to me very inconvenient 
 that a number of creditors should club together to take out a debtor's 
 summons, although that course appears to be sanctioned by the forms 
 annexed to the Rules of 1870. I give no opinion against the power 
 of creditors to do this, but 1 think that if they do unite in this way 
 they must all stand or fall together ; and if a petition for adjudication 
 is presented, they must all join in it. The summons cannot be dealt 
 with piecemeal, so that one debt can be made an act of bankruptcy, 
 and security required for another, and a third dealt with in some other 
 way. It is impossible to work out a debtor's summons in that way. 
 
 Sir G. Mellish, L. J. : — 
 
 I am of the same opinion. It is quite clear that in the Court of 
 Bankruptcy the consideration for a judgment may be investigated, 
 particularly when the judgment has gone by default. I do not mean 
 to say that this rule applies to sucli an extent that in every case in wliich 
 a Defendant has a good defence to an action and does not plead it, 
 as, for instance, where he had no notice of dislionour of a bill of 
 exchange, the Court of Bankruptcy would allow tlie creditors to go 
 behind the judgment. The real question must always be whether there 
 was a good consideration for the debt, and we have therefore to consider 
 wliether there was a good consideration in this case. If the Act- of 
 1874 had not passed, I should have doubted whether, as the debt was one 
 which was capable of being ratified in writing, tliere was not a good
 
 SECT. l] RYDER V. WOMBWELL. 409 
 
 consideration for the judgment. But, liaving regard to the facts of 
 tlie case, I think that the effect of the Act is to prevent there being 
 any consideration for tlie judgment. The case is not touched by the 
 1st section, because the liill of exchange was dr.awn before the Act 
 was passed. But when the Act came into operation the bill had not 
 l)ecome due, and the infant was still under age ; and the effect of the 
 2nd section was to prevent any action from being brought on the bill, 
 although it miglit liave been i-atified after tlie infant came of age. For I 
 am of opinion that that section applies to all contracts made by an 
 infant, provided the ratification is made after the passing of the Act ; and 
 tliat it is to be understood as saying that a debt contracted in infancy 
 shall not in future in any case form a valid consideration on which 
 an action can be brought. The statute in effect places a debt contracted 
 during infancy in the same position as a gambling debt ; and a bill 
 of excliange given for a gambling debt cannot form the ground for an 
 action. Even if the debtor does not plead that it was for a gambling 
 debt, and lets the judgment go against him, still the Court of Bankruptcy 
 would go beliind the judgment and declare the debt void. 
 
 I also agree with the Lord Justice as to the form of the debtor's 
 summons. If several creditors join in a debtor's summons, they must 
 stand or fall together. 
 
 RYDER ('. WOMBWELL. 
 In the E.xchequer Chamber, December 3, 1868. 
 
 [Reported in Law Iteports, 4 Exchequer Cases, 32.] 
 
 Appeal from the decision of the Court of Exchequer making absolute 
 so much of a rule as called on the plaintiff to shew cause why a verdict 
 found for him for 40/. 1.5s. should not be reduced by 151. 15s.; and dis- 
 charging the residue of it, which called upon him to shew cause why a 
 nonsuit should not be entered ; or a new trial had, on the ground of the 
 improper rejection of evidence'. 
 
 The declaration was for money payable for goods sold and delivered. 
 Plea : Infancy. Replication : Necessaries. Issue thereon. 
 
 At the trial before Kelly, C. B., at the London sittings after Trinity 
 Term, 1867, it appeared that the plaintiff sought to recover for the 
 following (among other) articles of jewelry supplied by him to the 
 defendant, a minor: — First, a pair of crystal, ruby, and diamond solitaires, 
 251. ; and, secondly, a silver gilt antique chased goblet, engraved with an 
 inscription, 15/. 15s. 
 
 ' Law. Bep. 3 Ex, 'JO.
 
 410 KYDER V. WOMBWELL. [CHAP. IV 
 
 The defendant was tlic younger son of a deceased baronet of large 
 property in Yorksliire, and during liis minority liad an income of about 
 500/. pef annum, and on attaining his majority he came into 20,000/. 
 He had no residence of his own, but occasionally stayed at Limmer's 
 Hotel, Bond Street, London ; his home was his mother's house in London, 
 and liis brother's in Yorkshire, at each of which he was lioarded and 
 lodged gratuitously. He pursued no trade or profession, he moved in 
 the higliest society, and was in tlie habit of riding races for his friends, 
 amongst otjiers for the Marquis of Hastings, at whose hou.se lie was a 
 frequent visitor, and for whom the goblet was intended, as the plaintiii' 
 knew when he supplied it, as a present. The solitaires were ornamental 
 studs or buttons worn by gentlemen as fastenings for the wristbands of 
 the shirt ; they were made of crystals set in gold, and ornamented witli 
 diamonds representing a horse-shoe in which the nails were represented 
 by rubies. 
 
 Evidence was offered on the part of the defendant, that, at tlie time 
 of the purchase of the solitaires, he had purchased similar articles of 
 jewelry to a large amount from other tradesmen, which rendered any 
 further supply by the plaintiff unnecessary ; but, as it was proved that 
 the plaintiff" was not aware of this fact, the Lord Chief Baron i-ejected 
 the evidence. 
 
 The jury, in answer to the questions left to them by the learned judge, 
 found that the solitaires and the goblet were necessaries suitable to the 
 estate and condition in life of the defendant, and a verdict was accordingly 
 entered for the plaintiff" for 40/. 15s., being the price of the solitaires and 
 goblet, with leave to move to enter a nonsuit if the Court should be of 
 opinion that there was no evidence for the jury that either article was a 
 necessary ; or to reduce the damages by the price either of tlie solitaii-es 
 or the goblet, if the Court should be of opinion that there was e\idence 
 for the jury in respect of one or other of these articles only. A rule nisi 
 was obtained accordingly, and also for a new trial, on the ground of the 
 improper rejection of tiie evidence off'ered on the part of the defendant, 
 that the defendant was, at the time he purchased the solitaires of the 
 plaintiff", supplied already, although not to the knowledge of the plaintiff", 
 with similar articles. This rule was afterwards made absolute to reduce 
 the verdict by 15/. 15s., the price of the goblet, and discharged as to the 
 residue ; the majority of the Court being of opinion that the verdict of 
 the jury as to the solitaires ought not to be disturbed, and that the 
 evidence offered to prove that the defendant, when the solitaires were 
 supplied, was already sufficiently supplied with articles of a similar 
 description, was, under the circumstances, properly rejected. 
 
 June 20, 1868. Bulwer, Q.C. (Mayd with him), for the defendant, 
 contended, first, tliat a nonsuit ought to be entered, as there was no 
 evidence proper to be left to the jury that the solitaires were necessaries. 
 In addition to the cases referred to in the Court below, he cited RainsJ'ord
 
 SKCT. l] RYDER V. WOMBWELL. 411 
 
 V. Fenwick' ; Gremxe. v. Chester^; Ive v. Chester'^; and Wlnttingham v. 
 Hill* ; to shew that in former times, when a more precise and accurate 
 form of pleading prevailed, the facts relied upon as shewing that the 
 goods supplied were necessaries were stated upon the record, and the 
 Court were enabled to give judgment whether in point of law the 
 replication was sufficient. But when it was established (see Coke's 
 Entries, Debt. 8, p. 125, and Hugyhis v. WisemanY that the plaintiff 
 might reply in the general form now in use, it became necessary that the 
 facts wliich used formerly to be stated on the record should be found by a 
 jury, and tjien tlie Court had to determine, as formerly, whether the facts 
 found did, in point of law, furnish an answer to the plea. He contended, 
 secondly, that the evidence was improperly rejected ; and on this point 
 referred to the following additional authorities : Story and Another v. 
 Perri/" ; Cook v. Beaton''; Ford v. FothergiW ; Steedman v. Jio.te" ; 
 Berroles v. Ramsay^"; Brayshaw v. Eaton"; Foster v. Redgrare^^ ; 
 Chitty on Contracts, 6th ed. pp. 136, 137, 140; Leake on Contracts, 
 p. 233. 
 
 Popham Pike {Coleridge, Q.C., with liim), for tlie plaintiff', contended 
 that the question whether the solitaires were necessaries was rightly left 
 to the jury, and that they had come to a right conclusion. He cited, 
 
 1 Carter, 215. = 2 Eolle, 144. s cro. Jac. 560. 
 
 * Cro. Jac. 494. ■> Carth. 110. « 4 C. & P. 526. 
 
 7 3 C. & P. 114. 8 1 Esp. 211. a Car. & M. 422. 
 
 1" Holt, N.P. 77. " 7 Scott, 183. 
 
 1- Queen's Bench, Feb. 9, 1867. — Foster v. Redgrave. — This was a cause tried before 
 Keating, J., at the Berkshire summer assizes, 1866. The declaration was on the com- 
 mon counts for goods sold and delivered, ttc. Plea : Infancy. Replication : Neces- 
 saries. 
 
 It appeared on the trial that the defendant, an undergraduate at Oxford, had, 
 whilst a minor, been supplied by the plaintiff, a tradesman in Oxford, with a number 
 of articles of clothing which were admitted to be "necessaries" prima facie. The 
 defence was, that the defendant was, at the time the goods were ordered and supjilied, 
 already provided with an ample wardrobe. It was not suggested, however, that the 
 plaintiff knew of this fact. 
 
 The learned judge left it to the jury to say whether, under these circumstances, the 
 goods supplied were necessaries. The jury found that they were, and a verdict was 
 thereupon entered for the plaintiff, with leave to move to enter a nonsuit. A rule was 
 afterwards obtained accordingly on the ground that the defendant, being already fully 
 supplied with articles of the same description as those sold to him by the plaintiff, 
 those could not be " necessaries," and therefore that the plaintiff was not entitled to 
 recover. 
 
 J. O. Griffits shewed cause, and contended that, unless the plaintiff was proved to 
 have had knowledge that the defendant was already sufficiently provided with articles 
 of a similar description to those supplied, his right to recover remained unaffected by 
 the circumstance that, in point of fact, the defendant was so provided. 
 
 The Court (Blackburn and Mellor, JJ.) without calling on Httditleftoii , Q.C., to 
 support the rule, made it absolute on the authority of Hainbriih/e v. Pickcriiirj (2 Wm. 
 Bl. 1325), and liraijshau) v. Eaton (7 Scott, 183).
 
 412 RYDER V. WOMBWELL. [CHAP. IV 
 
 in addition to tlie authorities quoted in the Court below, Hands v. 
 Sidney \ 
 
 With regard to the rejection of evidence, there was no case similar to 
 the present. In all of those cited in order to shew that tlie evidence 
 was admissible, though not brouglit to tlie plaintiflP's knowledge, tliere 
 were peculiarities. Either they were cases of husband and wife, or else 
 of minors, in respect of wliom there was a presumption that they were 
 already supplied with all necessaries by reason of tlieir living in their 
 father's houses, or of their being in statu pupillari. Again, in many of 
 tlie cases cited the tradesmen had peculiar facilities for knowing the 
 actual position of tlie minor. Putting aside particular and exceptional 
 cases there seemed to be no diflerence between a minor being actually 
 supplied with goods similar to those for the price of which he was being 
 sued, and liis being in the receipt of an income sufficient to buy them if 
 lie chose. Yet the amount of an infant's income had been held im- 
 material : Brayshaiv v. Eaton'-. Why should tlie amount of his income 
 when he had turned his money into goods be material 1 
 
 Bulwer, Q.C., in reply. Cur. adv. mdt. 
 
 Dec. 3, 1868. The judgment of the Court (Willes, Byles, Blackburn, 
 Montague Smith, and Lush, JJ.) was delivered by 
 
 Willes, J. In this case the plaintiif replied to a plea of infancy, that 
 the goods were necessaries suitable to the degree, estate and condition of 
 the defendant, and on this issue was taken. On the trial before the Lord 
 Chief Baron it was proved that the degree, estate and condition of the 
 defendant was that he was the younger son of a deceased baronet of 
 good fortune and family, that during liis minority he had an income of 
 about 500?. per annum, and on attaining his majority he became entitled 
 to 20,000?., that he moved in what is called the highest society, and rode 
 races for a friend, the Marquis of Hastings, at whose house he was a 
 frequent visitor. Amongst the articles supplied by the plaintiff upon 
 credit, and which, according to his case and the verdict of the jury, were 
 necessaries for an infant of this degree, were a silver-gilt goblet which he 
 ordered for the purpose of making a present to the Marquis of Hastings, 
 price 15Z. 15«., and a pair of solitaires or ornamental studs, worn as the 
 fastenings of the wristbands of a shirt, which it is stated in the case were 
 made of crystals set in gold and ornamented with diamonds, representing 
 a horseshoe in which the nails were rubies. The price of these studs or 
 solitaires was 25?. No e%'idence was given of anything peculiar in the 
 defendant's station rendering it exceptionally necessary for him to have 
 such articles. 
 
 At the close of the plaintifT's case the defendant's counsel offered 
 evidence that the defendant was already supplied with similar articles of 
 jewelry to a large amount, so as to render any further supply unnecessary, 
 1 8 T. E. 578. 2 7 Scott, 183.
 
 SECT. l] RYDER V. WOMBWELL. 413 
 
 but it being admitted that the plaintiff was not aware of this, the Lord 
 Cliief Baron rejected this evidence. 
 
 Leave was reserved to move to enter a nonsuit or reduce tlie damages, 
 and the question wliether these two articles were, under tlie circumstances, 
 necessaries, was left to the jury, wlio found for tlie plaintifl' as to both of 
 the articles above mentioned. They found for the defendant as to some 
 other articles wliich it is consequently not necessary to notice. A rule 
 nisi was obtained in the Court of Exchequer to enter a nonsuit or reduce 
 the verdict pursuant to the leave reserved, or for a new trial on tlie 
 ground of the improper rejection of evidence. 
 
 The rule was by the majority of the Court of Exchequer made absolute, 
 to reduce the damages to '251., the value of the studs, thus deciding tliat 
 there was no evidence on which the jury could find that it was necessary 
 for the infant to buy on credit a goblet for the purpose of making a 
 present, but that there was evidence on which they might find that it 
 was necessary for him to buy such studs as are above described, and the 
 rule for a new trial on the ground of the rejection of evidence was 
 discharged. Bramwell, B., dissented from this judgment, as in Jiis 
 opinion tliere was no evidence to go to the jury'; and the evidence re- 
 jected was admissible. 
 
 • The judgment of Bramwell, B., was as follows : — " In this case, ou a repli- 
 cation to a plea of infancy, the jury have found two articles to have been neces- 
 saries for the defendant. The articles are, a gold drinking cup, the price of which 
 is 151. 15s., and a pair of things called " solitaires," explained to us to mean 
 articles which may be used as studs to fasten the wristbands of a shirt. The price 
 of these solitaires is 251., owing to their costly material and manufacture, and 
 the jewels with which they are adorned. I believe I am right in saj'ing that studs 
 fit for the purpose, and such as a gentleman may well wear, might be bought for 
 a trifle, or the wristbands may be buttoned with buttons, scores of which may be 
 bought for a few pence. It was said that the question was for the jury, that 
 the rule is that where the article is one of an useful class, the question is one of fact to 
 be decided by them. This argument was principally used in favour of the claim 
 for the solitaires. I cannot agree to this. It is extremely difficult to name anything 
 which cannot be put to some use. Ear-rings for a male, spectacles for a blind 
 person, a wild animal, might be suggested. But even they might come within 
 the argument in support of the drinking cup claim, viz., that they might be used 
 for necessaiy and becoming presents. The argument seems to me to lead to an 
 absurdity. Food is necessary ; is it a question of fact, whether a daily dinner of turtle 
 and venison for a month, is a necessary for a clerk with a salary of 1/. a week ? 
 A threepenny ride in an omnibus ou a wet day may be a necessary for such a 
 clerk, and save him its cost by saving his clothes. Is whether a coach and four 
 is a necessary for him, a question of fact ? Besides, suppose a jury ask what is 
 the meaning of necessaries. Does it mean in law, as in strictness, something in- 
 dispensable? The answer must be, no. Then when they ask what is the meaning, 
 and it is expounded to them as being something reasonably required for the nourish- 
 ment, clothing, lodging, education, and decent behaviour and appearance, according to 
 station, how can such an explanation include these articles ? 
 
 But I may fairly be asked what is the rule ? It seems to me to be this. There are 
 some things which cannot be necessaries. The ear-rings, the spectacles in the
 
 414 RYDER V. WOMBWELL. [CHAP. IV 
 
 On ;ipp('.-i!, tliorefore, there are two questions raised before us : first, 
 whether there was evidence on which the jury might properly find that 
 both or eitlier of those articles were necessaries, on the determination of 
 whicli depends whether the verdict should be restored to a verdict for the 
 
 cases put, the wild animal, and all things which are useless except for amusement, or 
 where the utility is the subordinate consideration and the ornament or amusement the 
 principal. On the other hand, there are some things certainly necessaries, bread, 
 meat, vegetables, water. There are also things which may or may not be, and 
 which give rise to questions for a jury. For instance, an infant orders an expensive 
 coat ; but it appears his trade or calling is of that nature that such a coat is 
 necessaiy for his health ; or it is shewn that a coat at half the price would not 
 last half the time. Or if he has ordered a broadcloth coat, and it is said he 
 should have contented himself with fustian, evidence may be given as to his position, 
 and as to how such people dress in that class in that neighbourhood, and then 
 the question is for the jury. I am far from saying that the above is at once accurate 
 and exhaustive, but I forbear from the attempt to make it so. Not to be more 
 tedious, I think, therefore, that in this case the jury should have been told to find 
 for the defendant. If the argument as to the drinking cup is right, and if the 
 tradesman is bound to make no inquiry, why every case is for the jury, as an 
 infant may always have some friend to whom he would like to give the useless 
 article he has purchased. But I cannot see why that argument should be used. 
 An infant must drink, and drink out of some vessel ; therefore, the gold cup is in 
 the class of useful articles. If the question was for the jury, still I think such a 
 direction ought to have been given as would have precluded their going wrong, 
 unless they gave a perverse verdict. I think necessaries ought to have been so defined 
 and explained as to give them no opportunity of returning a wrong verdict, unless they 
 did so wilfully. Of course, with this opinion I think if there was evidence to go to the 
 jury, still the verdict was wrong, and there should be a new trial. It is observable 
 that no one pledged his oath that these things were necessary, or gave any 
 description of the articles, of then' utility, of the cost of other contrivances for 
 the purpose. 
 
 Further, I think evidence was admissible to shew that the defendant was supplied 
 with similar articles. Suppose a baker delivered 100 loaves daily to an infant, who 
 could only consume one, w ould he be liable for the price of the other 99 ? Certainly 
 not ; because they were not necessaries. But what difference does it make on 
 this question, that they are supplied by one baker or a hundred? The question is 
 hke that which arises where a married woman has dealt on credit. There it is a 
 question of authority, here of capacity, depending on whether the woman or infant 
 is sufficiently supplied. No doubt we are not concerned with the goodness or bad- 
 ness of the law, but I cannot help thinking it would be more correctly administered 
 by juries, at least, on this head, if its reason and advantages were properly appreciated. 
 It is not a law for the indemnity and defence of the infant who is sued merely ; 
 it is a law to deter people from trusting infants, and so save them from the con- 
 sequences of the improvidence and inexperience natural to their age, an improvidence 
 which would lead them into loss though all their dealings were with honest 
 people, an inexperience which causes them to be no match for rogues. Modern 
 legislation runs in the same direction of protecting the helpless and invalidating 
 contracts from which they have not the sense or power to protect themselves. 
 I thiuk our judgment should be to enter a verdict for the defendant; if not, 
 to order a new trial : and, in conformity with the Common Law Procedure Act, 
 1854 (17 & 18 Vict. c. 125), c. 44, the wrong verdict being no fault of the defendant, 
 without costs." Ed.
 
 Si:CT. l] RYDER V. WOMBWELL. -H-T 
 
 whole amount of 40/. 15s., or stand reduced to 25/., or be altogether set 
 aside and a nonsuit entered. Secondly, whether the evidence offered was 
 admissible ; tlie determination of which only affects the question whether 
 there should be a new trial or not. 
 
 The general rule of law is clearly established, and is that an infant is 
 generally incapable of binding himself by a contract. To this rule there 
 is an exception introduced, not for the benefit of the tradesman who may 
 trust the infant, but for that of the infant himself. This exception is 
 that he may make a contract for necessaries. And as is accurately stated 
 by Parke, B., in Peters v. Fleming\ "From the earliest time down to the 
 present the word necessaries is not confined in its strict sense to such 
 articles as were necessary to the support of life, but extended to articles 
 tit to maintain the particular pei'son in the state, station and degree in 
 life in which he is ; and therefore we must not take the word necessaries 
 in its unqualified sense, but with the qualification above pointed out. 
 Then the question in this case is whether there was any evidence to go to 
 the jury that any of these articles were of that description." In the 
 present case the first question is whether there was any evidence to go 
 to the jury that either of the above articles was of tliat description. 
 Such a question is one of mixed law and fact ; in so far as it is a question 
 of fact it must be determined by a jury, subject no doubt to the control of 
 the Court, who may set aside the verdict and submit the question to the 
 decision of another jury ; but there is in every case, not merely in those 
 arising on a plea of infancy, a preliminary question which is one of law, 
 viz., whether there is any evidence on which the jury could properly find 
 the question for the party on whom the onus of proof lies. If there is 
 not, the judge ought to withdraw the question from the jury and direct a 
 nonsuit if the onus is on the plaintiff or direct a verdict for the plaintifi' 
 if the onus is on the defendant. It was formerly considered necessary 
 in all cases to leave the question to the jury if there was any evidence, 
 even a scintilla, in support of the case ; but it is now settled that the 
 question for the judge (subject of course to review) is, as is stated by 
 Maule, J., in Jervell v. Parr'', not whether there is literally no evidence, 
 but whether there is none that ought reasonably to satisfy the jury that 
 the fact sought to be proved is established. In Tooiney v. London and 
 Brighton Raihvay Compani/^, Williams, J., enunciates the same idea 
 thus : "It is not enough to say that there was some evidence. ... A 
 scintilla of evidence . . . clearly would not justify the judge in leaving the 
 case to the jury. There must be evidence on which they might reasonably 
 and properly conclude that there was negligence," — the fact in that case 
 to be established. And in Wheelton v. Hardisty'\ in the considered 
 judgment of the majority of the Court, it is said, "The question is, 
 whether the proof was such that the jury would reasonably come to the 
 
 1 6 M. & W. at p. 46. = l.S C. B. at p. 916. 
 
 ^ 3 C. B. (n.s.) at p. 150. ■• 8 E. & B. at p. 262.
 
 416 RYDER V. WOMBWELL. [CHAP. IV 
 
 conclusion" tliat the issue was proved. "This," they say, "is now settled 
 to be the real question in such cases by the decisions in the Excliequer 
 Cliamber, which have in our opinion so properly put an end to what had 
 been treated as the rule, that a case must go to the jury if there wei'e 
 what had been termed a scintilla of evidence." In this Lord Campbell 
 agreed, though difiering as to the result'. Aiid taking that as the proper 
 test, we think that there was not in this case evidence on which the jury 
 could reasonably tind that it was necessary for maintaining the defendant 
 in the station of life in which he moved, either that he should give goblets 
 to his friends or wear shirt-buttons composed of diamonds and rubies 
 costing 12^. 10s. a piece. 
 
 We must first observe that tlie question in such cases is not whether 
 the expenditure is one which an infant, in the defendant's position, could 
 not properly incur. There is no doubt that an infant may buy jewelry or 
 plate, if he has the money to pay and pays for it. But the question is 
 whether it is so necessary for the purpose of maintaining himself in his 
 station that he should have these articles, as to bring them within the 
 exception under which an infant may pledge his credit for them as 
 necessaries. The Lord Chief Baron, in his judgment, questions whether 
 under any circumstances it is competent to the judge to determine as a 
 matter of law, whether particular articles are or are not to be deemed 
 necessaries suitable to the estate and condition of an infant, and whether, 
 if in any case the judge may so determine, his jurisdiction is not limited 
 to those cases in which it is clear and obvious that the articles in question 
 not merely are not, but cannot, be necessaries to any one of any rank, or 
 fortune, or condition whatever 1 This is an important principle which, if 
 correct, fully supports the judgment below, but we cannot assent to it. 
 We quite agree that the judges are not to determine facts, and therefore 
 where evidence is given as to any facts the jury must determine whether 
 they believe it or not. But the judges do know, as much as juries, what 
 is the usual and normal state of things, and consequently whether any 
 particular article is of such a description as that it may be a necessary 
 under such usual state of things. If a state of things exist (as it well 
 may) so new or so exceptional that the judges do not know of it, that 
 may be proved as a fact, and then it will be for the jury under a proper 
 direction to decide the case. But it seems to us that if we were to say 
 that in every case the jury are to be at liberty to find anything to be a 
 necessary, on the ground that there may be some usage of society, not 
 proved in evidence and not known to the Court, but which it is suggested 
 that the jury may know, we should in eflect say that the question for the 
 jury was whether it was shabby in the defendant to plead infancy. 
 
 We thmk the judges must determine whether the case is such as to 
 cast on the plaintiff the onus of proving that the articles are within the 
 exception, and then whether there is any sufficient evidence to satisfy 
 1 See 8 E. & B. at p. 266.
 
 SKCT. l] HYUEU U. Wt)Mli\VKLL. 417 
 
 that onus. In tlic judgment of Bramwell, B. in the Court below, many 
 instances are j)ut well illustrating the necessity of such a rule. It is 
 enough for the decision of this case if we hold that such articles as are 
 here described are not prima facie necessary for maintaining a young man 
 in any station of life, and that the burthen lay on the plaintitF to give 
 evidence of something peculiar making them necessaries in this special 
 case, and tliat he has given no evidence at all to that effect. 
 
 The cases will, we think, be found to be quite consistent with this 
 view. In Peters v. Fleming', the Court took judicial notice that it was 
 prima facie not unreasonable that an undergraduate at college should 
 have a watch, and consequently a watch chain, and that therefore it was 
 a question for a jury whetlicr the watch chain supplied on credit in that 
 particular case was such a watch chain as was necessary to support 
 himself properly in his degree. In laying down the law as to the par- 
 ticular case, Parke, B., says": "All such articles as are purely ornamental 
 are to be rejected, as they cannot be requisite for any one." Possibly 
 there may be exceptional cases in which things purely ornamental may be 
 necessary. In such a state of things as we believe existed at the close of 
 the last century it might have been a question for a jury whether it was 
 not necessary, for the purpose of maintaining his station, for a young 
 gentleman moving in society to purchase wigs and hair powder ; but as a 
 general rule, and in the absence of some evidence to shew that the usages 
 of society required the use of such things, we think the rule laid down 
 in Peters v. Fleming' is correct. It was approved of in Wharton v. 
 Mackenzie', where Coleridge, J., says'*, that in some cases it must be for 
 the judge to decide the question. Where evidence is given, as he 
 observes, of exceptional circumstances, the case must go to the jury with 
 proper directions, but in the absence of any explanation the Court will 
 decide. So in Brooker v. Scott^, Parke, B., during the course of the 
 argument, says": "Prima facie, these articles are not necessaries under 
 the circumstances, and the tradesmen must shew them to be so;" and in 
 giving judgment he says'; "If there had been any explanation of the 
 circumstances under which they were supplied, it might possibly have 
 varied the case, but no explanation whatever is given of them;" and on 
 that ground a nonsuit was entered. 
 
 No doubt there are many cases in which the Court have held that 
 such evidence had been given, and that the case could not be withdrawn 
 from the jury, several of which are cited by the Lord Chief Baron in his 
 judgment, but none in which it is laid down that the Court is bound to 
 consider itself ignorant of every usage of mankind, and therefore bound, 
 in the absence of all evidence on the subject, to take the opinion of a jury 
 as to whether it is not so necessary for a gentleman to wear solitaires of 
 
 1 6 M. & W. 42. = 6 M. & W. at p. 47. ' 5 Q. B. G06. 
 
 ■" 5 Q. B. at p. 612. = 11 M. & W. 67. " U M. & W. at p. 68. 
 
 ' 11 M. & W. at p. 6U. 
 
 F. 27
 
 418 JENNINGS V. RUNDALL. [CHAP. IV 
 
 this description, that, though an infant, he must obtain them on credit 
 ratlier than go without. 
 
 There is, no doubt, a possibility in all cases where the judges have to 
 determine wliother there is evidence on which the jury may reasonably 
 tind a fact, that the judges may ditt'er in o23inion, and it is possible that 
 the majority may be wrong. Indeed, whenever a decision of the Court 
 below on sucli a point is reversed, the majority must have been so either 
 in the Court above or the Court below. This is an infirmity which must 
 affect all tribunals. But in the present case we do not think any such 
 case has ai'isen, for we do not understand any of the judges to proceed on 
 the ground that they think that, in fact, the solitaires of this expensive 
 character were shirt buttons really got for utility, and that the degree 
 of ornament was only accidental, or that the jury were not wrong if they 
 so found, but on the ground that it was not a question for the Court at all. 
 
 Taking this view of the law and facts, it follows that the judgment 
 should be reversed, and a nonsuit entered. It becomes therefore un- 
 necessary to decide whether the evidence tendered was properly rejected 
 or not. That is a question of some nicety, and the authorities are by no 
 means uniform. In Bainhridge v. Pickering^ the Court of Common Pleas 
 seem to have acted on a principle which would make the evidence 
 admissible. In Brayshaw v. Eaton', Bosanquet, J., treats it as clearly 
 admissible, and on those authorities the Court of Queen's Bench (then 
 consisting of Blackburn, J., and Mellor, J.) acted in Foster v. Redgrave^. 
 There is much to be urged in support of the view taken by the majority 
 in the Court below, and we desire not to be understood as either over- 
 ruling or affirming that decision. If ever the point again arises, the 
 Court before which it comes must determine it on the balance of authority 
 and on principle, without being fettered by a decision of this Court. 
 
 Judgment reversed, and a nonsuit entered. 
 
 JENNINGS V. RUNDALL. 
 
 In the King's Bench, November 12, 1799. 
 
 [Reported in 8 Term Reports, 335]. 
 
 The first count in this declaration stated that the plaintiff on, &c. at 
 the instance and request of the defendant delivered to the defendant a 
 certain mare of the plaintiff to be moderately ridden by the defendant, yet 
 that the defendant contriving and maliciously intending to injure the 
 plaintifl whilst the mare was in the defendant's custody under such 
 delivery and before the same was returned to the plaintiff on, &c. wrong- 
 fully and injuriously rode used and worked the said mare in so immoderate 
 ' 2 Wm. Bl. 1325. ^ 7 gcott, 183. 3 Ante p. 411, n. 12.
 
 SECT. l] JENNINGS V. ItUNDALL. 419 
 
 excessive and improper a manner, and took so little and such bad care 
 thereof, that by reason of such immoderate, &c. riding, &c. tlie said mare 
 Ijccame and was greatly strained damaged, &c. In the second count it 
 was alleged that the plaintifi' at the instance and request of tlie defendant 
 let to hire and delivered to the defendant a certain other mare to go and 
 perform a certain reasonable and moderate journey, &c. yet that the 
 defendant contri\'ing, &c. wrongfully and injuriously rode and worked the 
 said mare a much longer journey, &c. There was also a count in trover 
 for two mares. 
 
 The defendant pleaded his infancy to tlie two first counts, to which 
 plea the plaintifi" demurred. 
 
 Marryat, in support of the demurrer, (after observing that it was 
 inmiaterial whether or not infancy could be pleaded to the second count, 
 because it being pleaded to both counts if it were a bad plea as to either 
 count the whole plea was bad,) contended that, as the iirst count was not 
 founded on a contract but on a tort, the defendant could not plead infancy 
 to it. That that count did not state any consideration for the delivery of 
 the mare by the plaintiff to the defendant, or any promise by the defendant 
 to take care of her or to redeliver her; but that it appeared to be a 
 delivery on bail to the defendant who had abused the plaintiffs property. 
 That the tort here did not consist in mere neglect or omission, but in a 
 tortious act done by the defendant. That the dictum in the books, that if 
 the action arise out of the contract the plaintiff shall not by declaring in 
 tort prevent the defendant pleading infancy, must be confined to cases 
 where the wrong complained of consists in omission, or in some act which 
 is a tort only by construction of law. That such was the ground of 
 decision in Grove v. Nevill, 1 Keb. 778, (said in 1 Keb. 913, 914, to have 
 been decided) where in an action upon the case in nature of a deceit on 
 sale by the defendant of goods as his own, when in truth they belonged to 
 another,' the Court said " This is no actual tort, or any thing ex delicto, 
 but only ex contractu." That in Johnson v. Pie^, where the defendant 
 had falsely and fraudulently asserted himself to be of full age, and had as 
 such executed a mortgage to the plaintiff, and where it was holden that 
 the defendant, an infant, was not answerable, the action was founded on 
 the very contract in which the defendant had cheated the plaintiff: 
 whereas here is a tortious act done by the defendant, and that too subse- 
 quent to the time when any supposed contract could have been entered 
 into respecting the hire of the mare. He observed that an infant is 
 answerable in an action for slander, Noy, 129; because there an act is 
 done by the defendant ; and in that case it was said that malitia supplet 
 
 ' 1 Keb. 905, 913; 1 Lev. 169. The judgment is thus reported : — " Sedper cur: 
 coment infants serront lie p'actual torts, come trespass, etc., queux sont vi et contra 
 pacem, une' ne serront lie p' ceux q' sound in deceit, car si serront, touts les infants in 
 AnRleterre serront ruine, et in cases lou lour contracts ne eux lie serront ch' come pur 
 tort." El). 
 
 27—2
 
 420 JENNINGS V. RUNDALL. [CHAP. IV 
 
 oetatcni ; .so here malice is laid. That in trover an infant is also responsible 
 on account of the wrongful conversion subsequent to the bailment ; 
 though in most instances in trover the act is only a breach of trust or 
 violation of some duty. And that even in an action of trespass for mesne 
 profits he cannot plead infancy, though there he becomes a trespasser by 
 construction of law. That if an infant wilfully destroyed anything that 
 had been bailed to him, there is no doubt but that he would be liable in 
 an action for the tort ; and that this was in eflect the same, because here 
 he rendered a mare, that had been bailed to him, less valuable by his 
 wrongful and injurious act. 
 
 Wood, contra, was stopped by tiie Court. 
 
 Lord Kenyon, Ch. J. Tlie law of England has very wisely protected 
 infants against tlieir liability in cases of contract ; and the present case is 
 a strong instance to shew the wisdom of that law. The defendant, a lad, 
 wished to ride the plaintiffs mare a short journey; the plaintiff let him 
 the mare to hire ; and in the course of the journey an accident happened, 
 the mare being strained ; and the question is whether this action can be 
 maintained 1 I am clearly of opinion that it cannot ; it is founded on a 
 contract. If it were in the power of a plaintiff to convert that, which 
 arises out of a contract, into a tort, there would be an end of that 
 protection which the law aiibrds to infants. Lord Mansfield indeed 
 frequently said that this protection was to be used as a shield, and not as 
 a sword ; therefore if an infant commit an assault, or utter slander, God 
 forbid that he should not be answerable for it in a court of justice. But 
 where an infant has made an improvident contract with a person who has 
 been wicked enough to contract with him, such person cannot resort to a 
 court of law to enforce such contract. And the words "wrongfully, inju- 
 riously, and maliciously," introduced into this declaration cannot vary this 
 case. 
 
 Grose, J. I am of the same opinion. In the case of Manhy v. Scott^ 
 this distinction was taken, that if the action against an infant be grounded 
 on a contract the plaintiff shall not convert it into a tort; " If one deliver 
 goods to an infant on a contract knowing him to be an infant, the infant 
 shall not be charged for them in trover and conversion ; for by that mean 
 all mfants in England would be ruined." A very few years after the 
 decision of that case the case of Johnson v. Pie arose, according to one 
 report of which Lord Ch. J. KeeHng expressed great indignation at the 
 attempt to charge an infant in tort for that which was the foundation of 
 an action of assumpsit ; he said "The judgment will stay for ever, else the 
 whole foundation of the common law will be shaken ; for this was but a 
 slip, and he might have pleaded his minority here." 
 
 Lawrence, J. The true distinction is that mentioned by my Brother 
 
 ' 1 Sid. 12'j.
 
 SECT. l] BUENARD V. HAGGIS. 421 
 
 Grose, and not that stated at the bar, between negligence and an act done 
 by the infant. It is argued tliat if no act be done by the infant he may 
 plead his infancy, but that infancy is not a defence where an act has been 
 done : if that were so, an infant would not be liable in many instances of 
 trover, where the conversion consists merely in a non-delivei"y ; and yet in 
 trover an infant is always liable. According to the same rule, if an action 
 were brought against an infant for negligently keeping the plaintiff's 
 cattle by which they died, infancy might be pleaded in bar; but if the 
 declaration charged the defendant with having given the cattle bad food, 
 by which they died, it could not. But this certainly is not the true 
 distinction. 
 
 Le Blanc, J. The plea of infancy is a good bar to this action, on the 
 ground that the act done in this case is the foundation of an action of 
 assumpsit. And the reason of the distinction taken in the case in 
 Siderfin is, that the plaintiff shall not by changing the form of the action 
 vary the liability of the infant. Now if the plaintiff could not have 
 maintained an action of assumpsit against the infant, neither can he 
 maintain the action in its present form. On this short ground, therefore, 
 I think that the plea of infancy is a good defence to this action. 
 
 Judgment /a)- the defendant. 
 
 BURNARD, Appellant, v. HAGGIS, Respondent. 
 
 In the Common Pleas, May 4, 1863. 
 [Tteported in 32 Laio Journal Reports, Common Pleas, 189 ^.J 
 
 Appeal from the County Court of Cambridgeshire, holden at Cambridge. 
 
 It appeared from the particulars of the plaintiff's claim, that the action 
 was brought to recover the sum of 30?. for the damage sustained by the 
 plaintiff by reason of the defendant having, on the lltli of March, 1862, 
 caused the death of the plaintifl's horse. The defendant duly pleaded 
 infancy, according to the statute and rules. The plaintiff's attorney 
 having opened the case as a question of contract as well as of tort, the 
 Judge asked the defendant's attorney if he objected to the particulars of 
 the claim, as he thought they pointed rather to tort than to contract, 
 when the defendant's attorney replied that he did not object to them; and 
 during the trial it was agreed between the plaintifl's and the defendant's 
 attornies that the question should go to the jury, whether the contract was 
 for a necessary suitable to the defendant's station in life. 
 
 ' Reported afso in 14 Common Bench, New Series, 4.5. Ed.
 
 422 BURNARD V. HAGGIS. [CHAP. IV 
 
 Upon tlie trial tlie following facts, inter alia, appeared in e-vidence. 
 Tlie plaintitr was a livery-stable keeper residing in Cambridge, and the 
 defendant was an undergraduate of Trinity College, Cambridge, whose 
 father was formerly a surgeon, but for some years past ceased to practise 
 his profession, and was thereupon appointed a magistrate for the county 
 of Somerset. The defendant was born on the 23d of May, 1842. 
 
 On the 11th of March, 1862 the defendant, accompanied by a friend 
 named Bonner, who was also an undergraduate of Trinity College, went 
 into the yard of the plaintiff, to whom both of them were strangers, and 
 the defendant stated to the plaintiff's servant, and afterwards to the 
 plaintiff, that he, the defendant, wanted a horse for a ride. A mare was 
 shewn to him, and he asked if she would jump. The plaintiff' said he had 
 no doubt she would, but he did not let her out for jumping or larking, and 
 that if he, the defendant, wanted a horse for jumping plaintiff could shew 
 him a horse for that purpose. The defendant replied that he did not want 
 a horse for jumping, but merely for a ride, and he said he would have the 
 mare, and he directed it to be sent for liim. The plaintiff stated, at the 
 trial, that the usual charge for a ride was 7s. 6d., and that he had charged 
 that sum against the defendant, who, however, had not paid it ; and that 
 the usual charge for a horse for jumping or larking was a guinea. 
 
 It appeared that, after the mare had been taken by the plaintiff's 
 servant to the place to which it had been directed to be taken by the 
 defendant, it was mounted by Mr. Bonner. 
 
 The defendant stated, at the trial, that he hired the mare, and that he 
 did tell the plaintiff, or his servant, that he wanted the mare for Mr. 
 Bonner. The defendant also stated that, on the same day, he hired a 
 horse of another livery-stable keeper, and that he rode that horse and 
 directed Bonner to ride the plaintiff's mare. The defendant and Bonner 
 rode together from Cambridge, and the defendant stated that between 
 Cambridge and the adjoining village of Grantchester they left the highway 
 and rode together across the fields to the adjoining village of Barton, 
 being a distance of about three miles, and in doing so they jumped their 
 horses over several hedges and ditches, and that on Mr. Bonner endeavour- 
 ing to jump the plaintiff's mare over a fence it fell, and a stake entered 
 its body. The mare was afterwards brought back to the plaintiff's yard, 
 where it was put under the care of a veterinary surgeon, but it died on 
 the 23rd of March, 1862 ; and the jury found that it died from the wound 
 received whilst ridden by Bonner. The jury also found, inter aha, that 
 the defendant was an infant under the age of twenty-one at the time of 
 the contract with the plaintiff; that the plaintiff did not know that the 
 mare was ridden by Bonner; that the luring of the mare was a contract 
 for a necessary suitable to the defendant's station in life, and that the 
 amount of damage which the plaintiff had sustained was 30^. 
 
 The learned Judge having, upon the finding of the jury, directed a 
 verdict to be entered for the plaintiff for 30^. damages, and having given
 
 SECT. l] BURNARD V. HAGGIS. 423 
 
 judgment accordingly, the defendant appealed therefrom, and the question 
 for the opinion of this Court was, whether, under the circumstances, the 
 plaintiff or the defendant was entitled to judgment. 
 
 Wills, for the appellant. The horse was not a necessary, and the jury 
 should have been directed to liave found a verdict for the defendant. 
 Wliether any particular article is a necessary or not for an infant is a 
 mixed question of law and fact — Cripps v. IliW. 
 
 [Byles, J. Is not the action here one of tort 1] 
 
 It was treated at the trial as one of contract, and both parties agreed 
 "that the question should go to the jury whetlier the contract was for a 
 necessary suitable to the defendant's station in life. " The case of Jennings 
 V. Rundall^ shews that an action founded on a contract cannot be converted 
 into one on tort so as to charge an infant defendant. In that case the 
 plaintiff declared that at the defendant's request he had delivered a mare 
 to the defendant to be moderately ridden, and that the defendant, 
 maliciously intending &c., wrongfully and injuriously rode the mare so that 
 she was damaged; and it was held, that the defendant might plead his 
 infancy in bar, the action being founded on a contract. According to the 
 cases of Wright v. Leonard^ and Bartlett v. Wells", an infant, though 
 liable for an actual tort, may plead infancy in bar to an action for a wrong 
 connected with a contract. If this action can lie treated as founded on a 
 contract, then it is clear that the liiring of the horse by the defendant 
 cannot be considered a necessary without there were some special circum- 
 stances, and if there were such, it was for the plaintiff to have she^vn 
 their existence — Brooker v. Scott' and Harrison v. Fane''. 
 
 Tozer, Serj., for the respondent, was stopped by the Court. 
 
 Erle, C. J. The question is, whether, under the circumstances stated 
 in this case, the plaintiff or the defendant be entitled to judgment, and I 
 am of opinion that our judgment ought to be for the plaintiff. It appears 
 that the defendant went to the stables of the plaintiff and contracted wth 
 the plaintiff' for the hire of a horse for a ride on the road, and not to be 
 taken across the fields and used for jumping. The defendant having so 
 got the horse, lent it to his friend, who took it across the fields, and in 
 endeavouring to jump the animal over a fence, transfixed it on a stake. 
 Now it is clear to me that on these facts there has been an actionable 
 wrong committed, for which the defendant is liable independently of the 
 finding of the jury that the hiring of the horse was a necessary suitable to 
 the degree and station in life of this young man. Putting aside all 
 question as to there being evidence or not sufficient to satisfy such finding, 
 I am of opinion that the defendant is legally liable for, and can be made 
 to pay the damage claimed in this action. 
 
 ' 5 Q.B. Rep. 606; s.c. 13 Law J. Rep. (n.s.) Q.B. 130. 
 
 = 8 Term Bep. 335 ; ante p. 418. '■' 30 Law J. Rep. (n.s.) C.V. 365. 
 
 ^ 31 Law J. Rep. (n.s.) Q.B. 57. = 11 Mce. & W. 07. '• 1 Man. ct Gr. 550.
 
 424 ASHBURT RAILWAY CARRIAGE AND IRON CO. v. RICHE. [CHAP. IV 
 
 WiLLES, J. I am of the same opinion. Tlie act of riding this liorse 
 at the fence where it met its death is just as much a trespass as if the 
 defendant without any hiring, and without the plaintiff's leave, had 
 mounted the plaintiif 's horse and gone with it into the fields and had there 
 used it as this horse was in fact used. Wliat was done by the defendant 
 was not an abuse of a contract, but was the doing of an act which he was 
 expressly forbidden by the owner to do with the animal. 
 
 Byles, J. I am of the same opinion. I agree that one cannot make 
 an infant liable for the breach of a contract by changing the form of action 
 to one ex delicto. This, however, is the case of a horse hired for one 
 purpose and used for another ; and more than that, it was let out to be 
 used by one person and was used by another person; it was let for riding 
 on the road, and was used for jumping over fences in the fields. There 
 was therefore an independent tort, for which the infant was liable, and it 
 is wholly unnecessary to consider any question about what are necessaries. 
 
 Keating, J. I am of the same opinion. The defendant was liable for 
 a tort wholly independent of any contract. 
 
 Judgment for the respondent. 
 
 SECTION II. 
 
 CORPORATIONS. 
 
 THE DIRECTORS, &c., OF THE ASHBURY ) „ 
 
 RAILWAY CARRIAGE AND IRON COM- [ ^^^^''^^^^ "^ 
 PANY {Limited) .... ) ^^^<>^; 
 
 HECTOR RICHE [ Defendant in 
 
 AND 
 
 f Di 
 
 Error. 
 
 In the House of Lords, June 1, 4, 7, 1875. 
 
 [Reported in Law Reports, 7 English and Irish Appeals, 053.] 
 
 Mr. John Ashbury had carried on at two places in Lancashire a very 
 extensive business in making railway carriages and waggons, turn-tables, 
 points, crossings, and roofs, and other things of a like sort needed )iy a 
 railway company, but liad not been concerned in the construction of rail- 
 ways themselves.
 
 SECT, it] ASHBURY RAILWAY CARRIAGE AND IRON CO. v. RICTIE. 425 
 
 A company called "The Ashbury Railway Carriage and Iron Com- 
 pany," incoi-porated under the Companies Act, 1862, was started for the 
 purpose of buying Mr. John Ashbury's business, and among the other 
 articles in the agreement for its purchase was this, that the said John 
 Aslibury shall not be interested (except as a shareholder in a company) in 
 "the business of a railway-carriage maker, iron manufacturer or con- 
 tractor, or any other business or branch of business theretofore carried on 
 by him at the said works." 
 
 A Memorandum of Association of the company, dated the 12tli of 
 September, 1862, was drawn up. By the .3rd clause of this memorandum 
 of association the objects of the company were thus defined: "The objects 
 for which the company is established are to make and sell, or lend on 
 hire, railway-carriages and waggons, and all kinds of railway plant, 
 fittings, machinery, and rolling-stock ; to carry on the business of mechanical 
 engineers and general contractors ; to purchase and sell, as merchants, 
 timber, coal, metals, or other materials; and to buy and sell any such 
 materials on commission, or as agents." 
 
 The Articles of Association recited an agreement to purchase the 
 business of John Ashbury. The first portion of these articles need not 
 be referred to. In a second portion (which was marked by a difierent 
 enumeration of clauses), under the heading " Business " the 4th clause 
 was in these terms : "An extension of the company's business beyond or 
 for other than the objects or purposes expressed or implied in the 
 memorandum of association shall take place only in pursuance of a special 
 resolution." By clause 36 of the articles it was provided that " the 
 directors may, with the sanction of a special resolution of the company, 
 previously given in general meeting, increase its capital," itc. By clause 
 68 the directors were to have the general conduct of the business of the 
 company, and to " exercise all such powers of the company as are not, by 
 the Act of Parliament or the regulations of the company" to be exercised 
 in general meeting. By clause 70 the directors might "at any board 
 meeting direct the aflixing of the seal of the company to any deed or 
 document." By clause 85 the directors might delegate " any of their 
 powers to committees consisting of such member or members of their body 
 as they shall think fit." 
 
 In 1864 Mr. Riche, the Defendant in Error, was carrying on business 
 in Belgium, in partnership witli his brother (since deceased) as a railway 
 contractor. On the 14th of March, 1864, the Belgian Government granted 
 to certain persons named Gillon and Baertsoen a provisional concession 
 for making a line of railway from Antwerp to Tournay, the payment of 
 two sums of iOOOl. and 16,000/. being settled as what is called "caution 
 money." The two concessionaries desired a company to be formed to carry 
 this concession into effect. It was agreed that Messrs. Riche were to 
 have the construction of the line; and in the early part of 1865 the two 
 concessionaries and Messrs. Riche and the directors of the Ashbury Com-
 
 420 ASHBURY RAILWAY CARRIAGE AND IRON CO. V. RICHE. [CHAP. IV 
 
 pany met together, and agreed to form a company (Societe Anonyme) to 
 work the concession. Tlie arrangement was for the Ashbury Company to 
 purchase the concession from Messrs. Gillon for 70,000Z., and to give the 
 contract for its construction to Messrs. Riche, the company thus be- 
 coming, in fact, the contractor for the construction of the line. In this 
 negotiation Mr. James Ashbury, one of the directors of the English company, 
 represented that company, and entered into the contracts. Sir Cusack 
 Roney afterwards acted in the same character. 
 
 The formation of a societe anonyme in Belgium, and the agreement 
 with Messrs. Riche that they should construct the line — the Ashbury 
 company undertaking to supply tiie societe anonyme with the requisite 
 funds — was said to have been adopted because the rails, &c., supplied by 
 a Belgian house would be free from the duty that the Belgian Government 
 imposed on rails imported from England, and consequently the profit 
 from the construction of the line would be increased. Messrs. Riche 
 began and for some time continued the works for the construction of the 
 line ; and for some time, too, the Ashbury directors paid, in the name of 
 their company, money to the societe anonyme to wliich Messrs. Riche had 
 become entitled. 
 
 Difficulties about payment arose as the work went on, the English 
 shareholders not adopting the views of their directors as to the specu- 
 lation. 
 
 In May, 1867, there was an "extraordinary meeting of the share- 
 holders of the company," at wliich a report was read from a committee 
 previously appointed at the general meeting of December, 1866. This 
 report disapproved of what had been done by the directors in the matter 
 of the Belgian railway (and likewise of what had been done by them in a 
 similar manner with respect to a Spanish railway), and contained the 
 following declarations : "As regards the two railway concessions, the 
 committee consider the items appertaining to these concessions should not 
 have appeared in the company's books, nor in the balance sheets. But, 
 looking at the important interests involved, and the extent to wliich they 
 would be jeopardised by proceedings in Chancery, extending over a con- 
 siderable period, they would recommend the shareholders to endeavour 
 to effect an amicable settlement with the directors, without having recourse 
 to legal proceedings." 
 
 The annual meeting was held on the 14th of May, 1867, to consider 
 (among other things) this report. This recommendation in the report of 
 an "amicable settlement with the directors" was considered, and an 
 arrangement was proposed by which the Directors were to "purchase from 
 the Ashbury Company any estate or interest which the company may 
 have in the Antwerp and Tournay railway contract or concession." The 
 Ashbury Company was, by the same arrangement, to allow legal proceed- 
 ings to be taken to enforce the claims or defend any actions, or otherwise, 
 in I'clation to the said businesses, which might be required, in the name
 
 SECT. It] ASHBURY RAILWAY CARRIAOE AND IRON CO. V. RICHE. 427 
 
 of the Ashlmry Company, but "at the expense of the said purchasers" 
 (the Directors), who were to indemnify the company against all liabilities. 
 
 At a general meeting on the 24th of December, 1867, this arrange- 
 ment was sanctioned, and tliough a resolution was proposed " That the 
 accounts be approved and adopted, with the exception that the term 
 'advances or contracts' be expunged," that was withdrawn and the 
 accounts passed, including that item. 
 
 Tlie Company, however, dealing with the brothers Eiche repudiated 
 the contract for constructing the line as one ultra vires. Messrs. Riche 
 brought an action for damages for breach of contract. The case was 
 referred to a barrister to state a special case, and the question of ultra 
 vires was that on which the decision was to depend. The Court was to be 
 at liberty to draw inferences of fact. The question of ultra vires was to 
 depend on the following considerations : — 
 
 First : The declaration of the objects of the Company made in the 
 Memorandum of Association. 
 
 Secondly : The words of several of the Articles of Association. 
 
 Thirdly : The acts of the Directors, and of meetings of the Company. 
 
 The case, setting forth the various matters already stated, was heard, 
 on the 25th of November, 1872, before the Court of Exchequer, consist- 
 ing of Barons Martin, Bramwell, and Channell, when the Judges diflered 
 in opinion, Baron Bramwell thinking that the verdict ought to be entered 
 for the defendants, who represented the shareholders of the company, 
 and the other two learned Barons being in favour of entering the verdict 
 for the plaintifls, the Messrs. Riche. It was so entered, and the judgment 
 was taken on Error to the Exchequer Chamber, where there was again a 
 difference of opinion ; Mr. Justice Blackburn delivering a judgment in which 
 Mr. Justice Brett and Mr. Justice Grove concurred, in favour of affirming 
 the judgment of the Court below, and Mr. Justice Archibald delivering 
 an opinion on behalf of Mr. Justice Keating, Mr. Justice Quain, and him- 
 self, for reversing it'. The Judges being thus equally divided, it stood 
 affirmed, an Error was then brought to this House'. 
 
 The Lord Chancellor (Lord Cairns) : — 
 
 My Lords, the history and progress of the action out of which the present 
 appeal arises is not, I must say, creditable to our legal proceedings. There 
 was not in the case any fact in dispute; and the only questions whicli 
 arose were questions of law, or questions, perhaps, as to tlie proper infer- 
 ence to be drawn from facts as to which there was no dispute. The 
 action, however, was commenced so long ago as the month of May, 1868. 
 The litigation appears to have been active and continuing, and yet seven 
 years have been consumed, and the result of all, up to the present time, 
 is this, that in the Court of Exchequer, two out of the three Judges were 
 
 ' The case, in both Courts, is fully reported Law Rep. 9 Ex. 224, 249. 
 - The arguments are omitted. Ep.
 
 428 ASHBURY RAILWAY CARRIAGE AND IRON CO. v. RICHE. [CHAP. IV 
 
 of opinion that the plaintiflf should have judgment ; and wlien the case 
 came before the Exchequer Chamber, it was heard before six Judges, 
 three of whom were of opinion tliat the plaintiff was entitled to judgment, 
 the other three thinking that the defendant was entitled to judgment. 
 The result, therefore, was that tlie judgment of the Court of Exchequer 
 was affirmed. 
 
 My Lords, but for this difference of opinion among the learned Judges, 
 I should have said that tlie only questions of law which arise in the case, 
 the questions which appear to me to be sufficient altogether to dispose of 
 the case, were of an extremely simple character. The action was brought 
 by the plaintiffs, who appear to be contractors in Belgium, and it was 
 brought for damages for the breach of an agreement entered into between 
 the plaintiffs and the shareholders, constituting the Ashbury Railway Car- 
 riage and Iron Company, Limited. 
 
 These persons constituted a company established under the Joint Stock 
 Companies Act of 1862. I think your Lordships will find it necessary to 
 consider with some minuteness some of the leading provisions of that Act 
 of Parliament. But, in the first place, you will fiiid it convenient to 
 ascertain the purposes for which this company was formed, and then the 
 nature of the agreement, or contract, for tlie breach of which the present 
 action was brought. 
 
 The purposes for which a company, established under the Act of 1862, is 
 formed, are always to be looked for in the Memorandum of Association of 
 the company. According to that Memorandum, the Ashbury Railway 
 Carriage and Iron Company, Limited, is formed for these objects — " to 
 make and sell, or lend on hire, railway carriages and waggons, and all 
 kinds of railway plant, fittings, machinery, and rolling stock ; to carry on 
 the business of mechanical engineers and general contractors; to purchase, 
 lease, work, and sell mines, minerals, land, and buildings ; to purchase and 
 sell, as merchants, timber, coal, metals, or other materials, and to buy and 
 sell any such materials on commission or as agents." Part of the argu- 
 ment at your Lordships' Bar was as to the meaning of two of the words 
 used in this part of the memorandum — the words "general contractors." 
 My Lords, as it appears to me, upon all ordinary principles of construction 
 those words must be referred to the part of the sentence which immediately 
 precedes them. The sentence which I have read is divided into four 
 classes of works. First, " to make and sell or lend on hire railway car- 
 riages and waggons and all kinds of railway plant, fittings, machinery, 
 and rolling stock." That is an object sui generis and complete in the 
 specification which I have read. The second is "to carry on the business 
 of mechanical engineers and general contractors." That, again, is the 
 specification of an object complete in itself ; and, according to principles 
 of construction, the term " general contractors " would be referred to that 
 which goes immediately before, and would indicate the making generally 
 of contracts connected witli the business of meclianical ens;ineers — sucli
 
 SECT. Il] AS1115UHY RAILWAY CAKRIAGE AND IKON CO. V. lUCHK. 42'J 
 
 contracts as mechanical engineers are in the hahit of making, and are in 
 their business required, or tiud it convenient, to make for the purpose of 
 carrying on their business. The third is, " to purchase, lease, work, and 
 sell, mines, minerals, land, and buildings." That is an object pointing to 
 the working and the acquiring of mineral property, and the generality of 
 the last two words, " land and buildings," is limited by the pui-pose for 
 which land and buildings are to be acquired, namely, the leasing, working, 
 and selling, mines and minerals. The fourth head is, " to purchase and 
 sell, as merchants, timber, coal, metals, or other materials, and to buy and 
 sell any such materials on commission or as agents." That requires no 
 commentary. 
 
 My Lords, if the term "general contractors" were not to be inter- 
 preted as I have suggested, the consequence would be that it would stand 
 absolutely without any limit of any kind. It would authorise the making, 
 therefore, of contracts of any and every description, and tlie memorandum 
 in place of sjoecifying a particular kind of business would virtually point 
 to the carrying on of business of any kind whatever, and would therefore 
 be altogether unmeaning. 
 
 My Lords, that being the object for which the company professes by 
 the memorandum of association to be incorporated, I now turn to examine 
 the contract upon which the present action is brought. I may relieve 
 your Lordships from any lengthened exposition of the nature of that 
 contract by referring you to the account given of it by Mr. Baron 
 Bramwell in the Court of Exchequer, which appears to nie accurately to 
 describe the general nature of the contract. Mr. Baron Bramwell states 
 this ' : " The substance of those contracts " — that is, the contract upon 
 which the action was brought, and two other contracts, which are in- 
 separably connected with it — "The substance of those contracts was this : 
 Gillon and Baertsoen had obtained the right to make a railway in Belgium. 
 This right the defendants' directors supposed to be valuable to its owners ; 
 that is to say, the line could be constructed for a certain sum, and a 
 societd anonyme could be constituted with shareholders to take its shares 
 to an amount which would give a large sum over the cost of construc- 
 tion. The benefit of this the directors desired to obtain for the defendant 
 company, and to do so purchased the concession. This was their main 
 object. But the plaintifls held a contract with the concessionai-ies to 
 construct the liiie, and to accomplish the directors' object it was necessary 
 or desirable, or they thought it was, that they should agree with the 
 plaintiiJ's that the defendants should constitute a societe anonyme, and, as 
 the plaintifls went on with the work, the defendants should pay into the 
 hands of the societe proportionate funds. The farther contract entered 
 into in the defendants' name, called B., is of no importance in this case. 
 The directors accordingly entered into two contracts in the defendants' 
 name — one with the concessionaries to purchase the concession ; the other 
 
 ' Law Eep. 9 Ex. 234.
 
 4:30 ASHBUUY KAILWAY CAURIAGE AND IRON CO. V. KICHK. [CHAP. IV 
 
 with the plaintiffs to furnish the societe anonyme with funds, tlie latter 
 contract being auxiliary to the former. They paid to tlie concessionaries 
 26,000^., part of the price. Now, whatever may be the meaning of 'carry on 
 the lousiness of mechanical engineers and general contractors,' to my mind 
 it clearly does not include the making of either of these contracts. It 
 could only be held to do so by holding that the words 'general con- 
 tractors ' authorised generally the making of any contracts ; and this they 
 certainly do not." 
 
 My Lords, I agree entirely, both with the description given here by 
 Mr. Baron Bramwell of the nature of the contract and with the conclusion 
 at which he arrived, tliat a contract of this kind was not within the words 
 of the memorandum of association. In point of fact it was not a con- 
 tract in which, as tlie memorandum of association implies, the limited com- 
 pany were to be the employed, they were the employers. They purchased 
 the concession of a railway — an object not at all within the memorandum 
 of association; and having purchased that, they employed, or they con- 
 tracted to pay, as persons employing, the plaintiffs in the present action, 
 as the persons who were to construct it. That was reversing entirely the 
 whole hypothesis of the memorandum of association, and was the making 
 of a contract not included within, but foreign to, the words of the memo- 
 randum of association. 
 
 Those being the results of the documents to which I have referred, I 
 \vi\\ ask your Lordships now to consider the effect of the Act of Parlia- 
 ment — the Joint Stock Companies Act of 1862 — on this state of things. 
 And here, my Lords, I cannot but regret that by the two Judges in the 
 Court of Exchequer the accurate and precise bearing of that Act of Par- 
 liament upon the present case appears to me to have been entirely over- 
 looked or misapprehended ; and that in the Court of Exchequer Chamber, 
 speaking of the opinion of those learned Judges who thought that the 
 decision of the Court of Exchequer should be maintained, the weight 
 which was given to the provisions of this Act of Parliament appears to me 
 to have entirely fallen short of that whicli ought to have been given 
 to it. Your Lordships are well aware that this is the Act which put 
 upon its present permanent footing the regulation of joint stock com- 
 panies, and more especially of those joint stock companies which were to 
 be authorised to ti'ade %\'ith a Umit to their liability. 
 
 The provisions under which that system of limiting liability was 
 inaugurated, were provisions not merely, perhaps I might say not mainly, 
 for the benefit of the shareholders for the time being in the company, but 
 were enactments intended also to provide for the interest of two other 
 very important bodies ; in the first place, those who might become share- 
 holders in succession to the persons who were shareholders for the time 
 being ; and secondly, the outside public, and more particularly those who 
 might be creditors of companies of this kind. And I will ask your Lord- 
 ships to observe, as I refer to some of the clauses, the marked and entire
 
 SECT. Il] ASIIBURY RAILWAY CAUUIAUE ANJ) IKON CO. ('. lilCllE. 4;11 
 
 difference there is between the two documents wliich form the tith; dccd.s 
 of companies of this description — I mean tlie Memorandum of Association 
 on the one hand, and the Articles of Association on the otlier hand. 
 With regard to the memorandum of association, your Lordships will find, 
 as has often already been pointed out, although it appears somewhat to 
 have been overlooked in the present case, that that is, as it were, the 
 charter, and defines the limitation of the powers of a company to be 
 established under the Act. With regard to the articles of association, 
 those articles play a part subsidiary to the memorandum of association. 
 They accept the memorandum of association as the charter of incorpora- 
 tion of the company, and so accepting it, the articles proceed to define the 
 duties, the rights and the powers of the governing body as between them- 
 selves and the company at large, and the mode and form in wliich the 
 business of the company is to be carried on, and the mode and form in which 
 changes in the internal regulations of the company may from time to 
 time be made. With regard, therefore, to the memorandum of association, 
 if you find anything which goes beyond that memorandum, or is not 
 warranted by it, the question 'will arise whether that which is so done is 
 ultra vires, not only of tlie directors of the company, but of the company 
 itself. With regard to the articles of association, if you find anything 
 which, still keeping within the memorandum of association, is a violation 
 of the articles of association, or in excess of them, the question will arise 
 whether that is anything more than an act extra vires the directors, but 
 intra vires the company. 
 
 The clauses of the statute to which it is necessary to refer ai-e four : 
 in the first place, the sixth clause. That provides that "Any seven or 
 more persons associated for any lawful purpose may, by subscribing their 
 names to a memoi-andum of association, or otherwise complying with the 
 requisitions of this Act in respect of registration, form an incorporated 
 company, with or without limited liability." My Lords, this is the first 
 section which speaks of the incorporation of the company ; but your 
 Lordships will observe that it does not speak of that incorporation as the 
 creation of a corporation with inherent common law rights, such rights as 
 are by common law possessed by every corporation, and without any other 
 limit than would by common law be assigned to them, but it speaks of the 
 company being incorporated with reference to a memorandum of associa- 
 tion ; and you are referred thereby to the pro^'isions which subse- 
 quently are to be found upon the subject of that memorandum of 
 association. 
 
 The next clause which is material is the eighth : " Where a company 
 is formed on the principle of having the liability of its members limited to 
 the amount unpaid on their shares, hereinafter referred to as a company 
 limited by shares, the Memorandum of Association shall contain the fol- 
 lowing things " (I pass over the first and second, and I come to the third 
 item which is to be specified) : " The objects for which the proposed
 
 4;52 ASHUURY KAILWAY CAKUIAOE AND IHON 00. V. RICHK. [CHAP. IV 
 
 company is to be established." That is, therefore, the meinorancluin which 
 the persons are to sign as a preliminary to the incorporation of the 
 company. They are to state " the objects for which the proposed company 
 is to be established ; " and the existence, tlie coming into existence, of the 
 company is to be an existence and to be a coming into existence for those 
 objects and for those objects alone. 
 
 Then, my Lords, the 11th section provides: "The memorandum of 
 association shall bear the same stamp as if it were a deed, and shall be 
 signed by each subscriber in the presence of, and be attested by, one 
 witness at tlie least, and that attestation shall be a sufficient attestation 
 in Scotland, as well as in England and Ireland. It shall, when registered, 
 bind the company and the members thereof to the same extent as if each 
 member had subscribed his name and affixed his seal thereto, and there 
 were in the memorandum contained, on the part of himself, his heirs, 
 executors, and administrators, a covenant to observe all the conditions of 
 such memoranduni, suliject to the provisions of this Act." Your Lordships 
 will observe, therefore, that it is to be a covenant in which evei'y member 
 of the company is to covenant that he will observe the conditions of the 
 memorandum, one of which is that the objects for which the company is 
 established are the objects mentioned in the memorandum, and that he not 
 only will oljserve that, but will observe it subject to the provisions of this 
 Act. Well, but the very next provision of the Act contained in the 
 12th section is this : "Any company limited by shares may so far modify 
 the conditions contained in its memorandum of association, if authorised 
 to do so by its regulations as originally framed, or as altered by special 
 resolution in manner hereinafter mentioned, as to increase its capital by 
 the issue of new shares of such amount as it thinks expedient, or to con- 
 solidate and divide its capital into shares of larger amount than its existing 
 shares, or to convert its paid-up shares into stock, but, save as aforesaid, 
 and save as is hereinafter provided in the case of a change of name, no 
 alteration shall be made by any company in the conditions contained in 
 its memorandum of association." The covenant, therefore, is not merely 
 that every member will observe the conditions upon which the company is 
 established, but that no change shall be made in those conditions ; and if 
 there is a covenant that no change shall be made in the oljects for which 
 the company is established, I apprehend that that includes within it the 
 engagement that no object shall be pursued by the company, or attempted 
 to be attained by the company in practice, except an object wliich is men- 
 tioned in the memorandum of association. 
 
 Now, my Lords, if that is so — if that is the condition upon which the 
 corporation is established — if that is the purpose for whicfi the corporation 
 is established — it is a mode of incorporation which contains in it both that 
 which is affirmative and that which is negative. It states affirmatively 
 the ambit and extent of vitality and power which by law are given to the 
 corporation, and it states, if it is necessary so to state, negatively, that 
 
 1
 
 SECT. Il] .VSIinUllY RAILWAY CAURIAOE AND IRON CO. V. RIOUE. ^■iV-l 
 
 iiotliing shall be clone beyond that ambit, and that no attempt shall be 
 made to use the corporate life for any other pifrpose than that which is so 
 specified. 
 
 Now, my Lords, with regard to the articles of association, observe how 
 completely different the character of the legislation is. The 14th section 
 deals with those articles: "The memorandum of association maj', in the 
 case of a company limited by shares, and shall, in the case of a company 
 limited by guarantee or unlimited, be accompanied, when registered, by 
 articles of association, signed by the subscribers to the memorandum of 
 association, and prescribing such regulations for the company as the sub- 
 scribei-s to the memorandum of association deem expedient." They are to 
 be the masters of the regulations which (always keeping within the limit 
 allowed by law) they may deem expedient for the internal regulation of 
 the company. " The articles shall be expressed in separate paragraphs, 
 numbered arithmetically. They may adopt also any of the pro\'isious 
 contained in the table marked A. in the first schedule hereto." I need 
 not rejid the remainder of that section. 
 
 But your Lordships must take, in connection with that, the 50th 
 section of the Act. That provides that " subject to the provisions of this 
 Act, and to the conditions contained in the memorandum of association, 
 any company formed under this Act may, in general meeting, from time 
 to time, by passing a special resolution in manner hereinafter mentioned, 
 alter all or any of the regulations of the company contained in the articles 
 of association, or in the table marked A. in the first schedule, where such 
 table is applicable to the company, or make new regulations to the exclu- 
 sion of, or in addition to, all or any of the regulations of the company." 
 Of the internal regulations of the company the members of it are absolute 
 masters, and, provided they pursue the course marked out in the Act, that 
 is to say, holding a general meeting and obtaining the consent of the 
 shareholders, they may alter those regulations from time to time ; but all 
 must be done in the way of alteration subject to the conditions contained 
 in the memorandum of association. That is to override and overrule any 
 pro\-isions of the articles which may be at variance with it. The memo- 
 randum of association is, as it were, the area beyond which the action of 
 the company cannot go ; inside that area the shareholders may make such 
 regulations for their own government as they think tit. 
 
 My Lords, that reference to the Act will enable me to dispose of a 
 provision in the articles of association in the present case which was 
 hardly dwelt upon in argument, but which I refer to in order that it may 
 not be supposed to liave been overlooked. It appears that there has come 
 into the articles of association of this company one which is in these words : 
 " An extension of the company's business beyond or for other than the 
 objects or purposes expressed or implied in the memorandum of associa- 
 tion shall take place only in pursuance of a special resolution." In point 
 of fact, no resolution for the extension of the business of the company was 
 F. 28
 
 4;j4 ASllHURY 1!AII,\VAY fAltlUAriE AND IKON CO. V. RICIIE. [CHAI'. IV 
 
 in tliis case come; to ; but even if it had been come to, it would have been 
 entirely inept and inefficacious. Thei-e was, in this 4th article, an attempt 
 to do the very thing which, by the Act of Parliament, was prohibited to 
 be done — to claim and arrogate to the company a power under the guise 
 of internal regulation to go beyond the objects or purposes expressed or 
 implied in the memorandum. 
 
 Now, my Lords, bearing in mind the difference which I have just 
 taken the liberty of pointing out to your Lordships between the memo- 
 randum and the articles, we arrive at once at all wliich appears to me to 
 be necessary for the purpose of deciding this case. I have used the ex- 
 pressions extra vires and intra vires. I prefer eitlier expression very 
 much to one whicli occasionally has been used in the judgments in the 
 present case, and has also been used in other cases, the expression " il- 
 legality." 
 
 In a case such as that which your Lordships have now to deal with, it 
 is not a question whether the contract sued upon involves that which is 
 malum prohibitum or malum in se, or is a contract contrary to public 
 policy, and illegal in itself. 1 assume the contract in itself to be perfectly 
 legal, to have nothing in it obnoxious to the doctrine involved in the ex- 
 pressions which I have used. The question is not as to the legality of the 
 contract ; the question is as to the competency and power of the company 
 to make the contract. Now, I am cleai'ly of opinion that this contract 
 was entirely, as I liave said, beyond the objects in the memorandum of 
 association. If so, it was thereby placed beyond the powers of the 
 company to make the contract. If so, my Lords, it is not a question 
 whether the contract ever was ratified or was not ratified. If it was a 
 contract void at its beginning, it was void because the company could not 
 make the contract. If every shareholder of the company had been in the 
 room, and eveiy shareholder of the company had said, " That is a contract 
 which we desire to make, which we autliorise the directors to make, to 
 which we sanction the placing the seal of the company," tlie case would 
 not have stood in any different position from that in which it stands now. 
 The sharetiolders would thereby, by unanimous consent, have been at- 
 tempting to do the very thing which, by the Act of Parliament, they 
 were prohibited from doing. 
 
 But, my Lords, if the shareholders of this company could not ab ante 
 have authorised a contract of this kind to be made, how could they sub- 
 sequently sanction the contract after it had, in point of fact, been made ? 
 I endeavoured to follow as accurately as I could the very able argument 
 of Mr Benjamin at your Lordships' Bar on this point ; but it appeared to 
 me that this was a difficulty with which he was entirely unable to grapple. 
 He endeavoured to contend that when the shareholders had found that 
 sometliing had been done by the directors which ought not to have been 
 done, tliey might be authorised to make the best they could of a difficulty 
 into which they had thus been thrown, and therefrom might be deemed to
 
 SECT. Il] ASHBl'RY RAILWAY CARRIACE AND IRON CO. V. RICHE. 4:{o 
 
 possess power to sanction the contract lieing proceeded witli. My Lords, 
 T am unable to adopt tliat suggestion. It appears to me that it would be 
 perfectly fatal to the whole scheme of legislation to which I have referred, 
 if you wei-e to hold that, in the first place, directors might do that whicli 
 even the whole company could not do, and that then, the shareholders 
 finding out what had been done, could sanction, subsequently, what they 
 could not antecedently have authorised. 
 
 My Lords, if this be the proper view of the Act of Parliament, it re- 
 conciles, as it appears to me, the opinion of all the Judges of the Court of 
 Exchequer Chamber; because I find Mr Justice Blackburn, whose judg- 
 ment was concurred in by two other Judges who took the same view, 
 expressing himself thus": "I do not entertain any doubt that if, on the 
 true construction of a statute creating a corporation it appears to be the 
 intention of tiie Legislature, expressed or implied, that the corporation 
 shall not enter into a particular contract, every court, whether of law or 
 equity, is bound to treat a contract entered into contrary to the enactment 
 as illegal, and therefore wholly void, and to hold that a contract wholly 
 void cannot be ratified." My Lords, that sums up and exhausts the wdiole 
 case. In my opinion, beyond all doubt, on the true construction of the 
 statute of 1862, creating this corporation, it appears that it was the 
 intention of the Legislature, not implied, but actually expressed, that the 
 corporation should not enter, having regard to its memorandum of asso- 
 ciation, into a contract of this description. If so, according to the words 
 of Mr Justice Blackburn, every court, whether of law or of equity, is 
 bound to treat that contract, entered into contrary to the enactment, 
 I will not say as illegal, but as extra vires, and wholly null and void, and 
 to hold also that a contract wholly void cannot be ratified. 
 
 My Lords, that relieves me, and, if your Lordships agree with me, 
 relieves your Lordships from any question with regard to ratification 
 I am bound to say that if ratification had to be considered I have found 
 in this case no evidence which to my mind is at all sutficient to prove 
 ratification ; but I desire to say that I do not wish to found my opinion 
 on any question of ratification. This contract, in my judgment, could not 
 have been ratified by tlie unanimous assent of the whole corporation. 
 
 I have only to add to what I have already said, that I observe that 
 some cases have been referred to here — those arising out of the Agriculturist 
 Cattle Insurance Company in your Lordships' House", and the case of the 
 Phosphate of Lime Company v. Green in the Court of Common Pleas^ — as 
 if they had some bearing on the present question. Those cases have a 
 bearing upon some of the observations with which I have troubled your 
 Lordships. They are cases which illustrate extremely well what I have 
 
 ' Law Eep. 9 Ex. 262. 
 
 - Spackman v. Evans, Law Rep. 3 H. L. 171; Erans v. Smallcomhe, Ibid. 249; 
 HniM^su-orth V. Evans, Ibid. 203. 
 ^ Law Eep. 7 C. P. 43. 
 
 28—2
 
 43G ASHBURY RAILWAY CARRIAGE AND IRON CO. V. RICHE. [CHAP. IV 
 
 said just now, that the articles of association of a company of tliis kind 
 arc the documents whicli define the power of directors as between them- 
 sel\es and the company. In those cases which I have mentioned the 
 whole question was, wlietlier tlie directors had gone beyond the powers 
 which were entrusted to them, and by which their autliority was limited 
 under the articles of association, or whether that which had been agreed 
 to had been duly performed. In no one of those cases was there any 
 question as to whetliei' the power of the whole company had been exceeded. 
 In the cases of tlie Agriculturist Cattle Insurance Company' no person 
 ever doubted that if tlie shareholders had assembled together they might 
 have released from the obKgation of a partnership contract inter se (for 
 there was no question of outside creditors) any member of the company 
 upon any terms that they tliought fit. The only question was whetlier the 
 directors had released those who were released upon terms whicli they 
 were authorised to make, or whether, if they had not released them upon 
 sucli terms, the release subsequently became known to the company and 
 was sanctioned by the company. The shareholders might have passed a 
 resolution sanctioning the release, or altering the terms in the articles of 
 association upon which releases might be granted. If they had sanctioned 
 what had been done without the formality of a resolution, it was quite 
 clear tliat that would have been perfectly sulficient. So also in the case 
 of the Phosphate of Lime Company^ the question was, whether that had 
 been done by the sanction of the company which clearly might have been 
 done by a resolution passed by the company. Those cases have no ap- 
 plication whatever to tlie present case. The present case stands upon tlie 
 power, not of the directors alone, but of tlie whole company as settled by 
 the Act of Parliament. 
 
 My Lords, for the reasons which I have thus endeavoured to express, 
 I submit to your Lordsliips and move your Lordships that the judgment 
 in the present case should be reversed, and judgment entered for the 
 defendants^. 
 
 Judgment of the Court of Exchequer Chamber re- 
 versed, and judgTtient entered for defendants*. 
 
 Lords' Journals, 8th June, 1875. 
 
 ' Spademan v. Evans, Law Rep. 3 H. L. 171; Evans v. Smallcomie, Ibid. 219; 
 Houldsxcorth v. Evans, Ibid. 263. 
 
 ^ Law Rep. 7 C. P. 43. a The other judgments are omitted. Ed. 
 
 ■• See Attorney-General v. Great Eastern Railway Co., 5 App. Gas. 473, 481, where 
 Lord Blackburn referring to the case labove reported said:— "That case appears to me 
 to decide at all events this, that where there is an Act of Parliament creating a corpo- 
 ration for a particular purpose, and giving it powers for that paitieular purpose, what 
 it does not expressly or implicitly authorise is to be taken to be prohibited." Ed.
 
 SECT. Ill] MOLTON AND WIFE V. CAMROUX. 487 
 
 SECTION III. 
 
 LUNATIC AND DRUNKEN PERSONS. 
 
 MOLTON AND WIFE, Administratrix of Thomas Lee, deceased, v. 
 
 CAMROUX. 
 
 In the Exchequer, June 13, IS-tS. 
 
 In the Exchequer Chamber, May 29, 1849. 
 
 {Iteported in Exchequer Reports, Vol. 2, p. 487, and Vol. 4, p. 17.) 
 
 Assumpsit by the plaiutifl', as administratrLx of Thomas Lee, against 
 the defendant, as secretary of the National Loan Fund Life Assurance 
 Company, for money had and received to the use of Thomas Lee, and of 
 the plaintiff as his administratrix, and on an account stated. 
 
 Plea, non assumpsit. 
 
 At the trial of the cause, before Pollock, C. B., at the London sittina;s 
 after Michaelmas Term, 1846, the jury found certain facts, and the 
 plaintifls had a verdict, leave being reserved to enter a nonsuit. 
 
 Gurney, in Hilary Term, 1847, obtained a rule nisi, in pursuance of 
 leave reserved, with leave to turn the facts into a special verdict. A 
 special verdict was agreed upon, which embodied the following facts : — 
 
 The present action was brought to recover from the defendant, the 
 secretary of the National Loan Fund Life Assurance Society, two sums of 
 350^., and 51. 6s. '2d., which has been paid by Thomas Lee, the deceased, 
 to the society, under the following circumstances. 
 
 Thomas Lee, on the 29th of August, 1843, made a proposal to the 
 said society for the purchase of an annuity of 2H. 12s. lOrf. for liis life, 
 payable yearly on the 29th of August, the first payment to be made on 
 the 29th of August in the following year, and that he should pay the sum 
 of 350/., as the consideration of that annuity ; and on the same day he 
 made a proposal to the said society for the purchase of a deferred annuity 
 of 30/. for his life, to commence on his attaining the age of sixty years, 
 which would be on the 30th of June, 1864, the first payment to be on tlie 
 30th of June, 1865, reserving to liim the option of receiving, in lieu of 
 such annuity, the sum of 293/. 5s., payable immediately, or the deferred 
 sum of 377/. 5s., to be paid to his representatives after his deatli. The 
 proposals were assented to and accepted by the society, and the terms of 
 the agreements were embodied in two policies of insurance, bearing date 
 respectively the 29th of August, 1843. The sums agreed upon of 350/.
 
 438 MOLTON AND WIFE V. CAMROUX. [cHAP. IV 
 
 and f)/. 6s. 2d. were tlion paid by the deceased, wlio subsequently died 
 intestate in 1844. No memoiial of these annuities had ever been inrolled 
 in the High Court of Chancery. At the time of the making of these 
 proposals, and of the assenting thereto and acceptance thereof, and of tlie 
 erantin" of the said annuities, and of the payment of the said sums by 
 Thomas Lee, the intestate, he was a lunatic, and of unsound mind, so as 
 to be incompetent to manage his affairs ; but of this the society had not at 
 that time any knowledge. Tlie purchases of the annuities by Thomas Lee 
 were transactions in the ordinai-y course of the affairs of human life, and 
 the grantin" of the annuities to him in the manner and upon the terms 
 before mentioned, were fair transactions, and transactions of good faith on 
 the part of the society, and in the ordinary course of their business ; and 
 at the time of making the proposals, and at the time they were assented 
 to and accepted by the society, and of the granting of the annuities, and of 
 the payment of the two sums by him, he appeared to the society to be of 
 sound, though lie was then in fact of such unsound mind as aforesaid. 
 The society tirst had notice of the unsoundness of mind of the grantee by 
 letter dated the 23rd of September, 1843, from his solicitors. No com- 
 mission of lunacy had ever been issued against the grantee. The society 
 had never made any payments in respect of the annuities in question, but 
 had always been ready and willing to pay any sum which miglit have 
 become due under them, and had never attempted to avoid the agreements. 
 
 The plaintifi's points were, that the said Thomas Lee, being of unsound 
 mind, could not make a valid contract of the nature set forth in the 
 verdict ; and secondly, that the supposed contracts were void by statute, 
 for want of inrolment. And therefore that the plaintiffs were entitled to 
 recover back the sums of money so paid. 
 
 The case was argued in Hilary Term, on the 17th and 21st of 
 January, by 
 
 Needham, for the plaintiffs. The present case raises two questions for . 
 the opinion of this Court. First, whether the personal representatives of 
 a lunatic can recover money which he has paid under a contract with a 
 person who has entered into it bona fide, and without knowledge of the 
 lunacy. Secondly, whether the annuity granted is void for want of 
 inrolment. Upon the first point there is no direct authority ; but there 
 are many authorities in support of the principle that a lunatic cannot 
 make a contract to bind his property. Thus, the old writ of Dum fuit nou 
 compos mentis lay to recover back land which had been aliened by a 
 person not in his right mind': and it has been held, that a pei'son non 
 compos mentis cannot either make or revoke a will^, and the Courts have 
 always held their wills to be void. Nor can a lunatic suffer a recovery, 
 Hume V. Burton' Keeue v. Keene''; nor execute a deed, Yates v. Boen''; nor 
 a bond, Faulder v. Silk"; so he cannot indorse a bill of exchange, Alcock 
 
 1 Fitz. Nat. Brev., 202, (C.) = 6 Kep. 23. s 1 Eidg. Pari. Cas. 16. 
 
 * Ibid. 01. 5 2 Stra. 1101. » 3 Camji. 126.
 
 SECT. Ill] JIOLTOX AXn WIFE v. CAMROI'X. 4:39 
 
 V. Alcoek'; nor state an account, Tnrhuch v. Blupfiam'. The rule is the 
 same as respects parol contracts. In rainier v. I'ark/nirst", a bargain by 
 a lunatic, eight years before the lunacy found, was avoided by the party 
 being found a lunatic. [Parke, B. Was it suggested in that case, tliat it 
 was kno'\\'n by the defendant, at the time of the bargain, that the party 
 was a lunatic'?] It does not appear by the report whether or not he was 
 acquainted with the lunacy. [Parke, B. We are not able to tell what 
 the form of the plea was in Alcock v. Alcock; it does not appear whether 
 there was any allegation of notice or knowledge of the lunacy.] The 
 principle for which the plaintifi' now contends is, that a lunatic cannot 
 enter into a binding contract, as he cannot have a consenting mind. 
 [Platt, B. In Done v. Viscounfi'ss KirkiraU*, it was held by Patteson, J., 
 at Nisi Prius, that it was not sufficient to shew that Lady Kirkwall was of 
 unsound mind, but that the jury must be satisfied that the plaintiff knew 
 it, and took advantage of it. That ruling was subsequently upheld by the 
 Court of Queen's Bench, in the same case.] In Clerk v. Clerk', it was 
 held, that a family settlement made by a lunatic ought to be set aside, 
 although it was reasonable and for the convenience of the family. So the 
 marriage of a lunatic is void : Turner v. Meyers'^. There Sir W. Scott 
 says : " It is, I conceive, perfectly clear in law, that a party may come 
 forward to maintain his own past incapacity ; and also that a defect of 
 incapacity invalidates the contract of marriage as well as any other 
 contract." In Howard v. Lord Dx;jhy'' , Brougham, L. C, says, " The law 
 on this point is as dear, both in equity and in lunacy, and at common law, 
 as that a man's eldest legitimate son is his heir to freehold land. A 
 lunatic cannot bind himself by bond or by will ; a lunatic cannot release a 
 debt by specialty ; cannot be a cognizor in a statute-merchant, staple, a 
 judgment, warrant of attorney, or any other security." [Pollock, C. B. 
 Surely a payment by a lunatic would be a good answer to the debt for 
 which the lunatic was liable before his lunacy.] The defence of intoxica- 
 tion stands upon the same principle as that of lunacy ; and in the recent 
 case of Gwe v. Gihson", this Court held, that acts done by a man who had 
 lost his senses at the time, are totally void. [Parke, B. The anci:nt 
 doctrine, that no man of full age shall be permitted to stultify himself, has 
 been much qualified and restricted in modern times. There is a learned 
 note on this subject, at the end of the report of Gore v. Gihson, in the 
 Jurist, vol. 9, p. 142. Aliersox, B. There is this distinction between 
 the case of lunacy and that of intoxication : in the latter the incapacity of 
 the party is patent — in the former, it may not be in the least degree 
 visible.] In one respect the two eases are analogous : in neither of them 
 has the sufiterer a consenting mind. A lunatic is not criminally liable : 
 Jieg. V. Oxford". [Parke, B. It has been held that a lunatic innkeeper 
 
 ' 3 M. & Gr. 268. = 2 M. & W. 2. " 1 Ch. Ca. 112. 
 
 ■• 8 C. A' P. 68.5. 5 2 Vein. 212. '• 1 HaRg. C. E. -114. 
 
 ' 2 CI. & Fin. GUI. ^ 13 U. & W. 623. =' 11 C. & I'. 52,).
 
 440 MOLTON AND WIFE V. CAMROUX. [cHAP. IV 
 
 is liable for the loss of liis guest's goods: Cross v. Atidrews' .'\ There are 
 three exceptions to be found to the rule contended for in the case of 
 lunacy ; but these exceptions will, perhaps, be found to strengthen the 
 rule. A fine levied by a person non compos mentis has been held good : 
 Thompson v. Leach^, Needier v. I'he Bishop of Winchester^; and the reason, 
 as it appears from Beverley's case'', is, that the act is of a public and 
 notorious character, done in a court of record, and that the Court had the 
 power of judging of the sanity of the party. This is confirmed by stat. 18 
 Ed. 1, s. 4, the "Modus levandi fijies," and 10 Ed. 2, "De finibus;" and 
 by Mansfield's case'', where a fine had been made by one Bushley, an idiot, 
 " but notwithstanding this, and altiiough the monstrous deformity and 
 idiocy of Bushley was apparent and visible, yet the fine stood good." The 
 second exception to the general rule is that of a feofiment by a lunatic : 
 Thompson v. Leach''. The Court there said, "There is a difiference between 
 a feofiment and a livery made propriis manibus of an idiot, and the bare 
 execution of a deed by sealing and delivery thereof, as in cases of 
 surrenders, grants, releases, &c., which have their strength only by 
 executing them, and in wliich the formality of livery and seisin is not so 
 much regarded in law, and therefore the feoflBient is not merely void, but 
 voidable; but surrenders, grants, Ac, by an idiot, are void ab initio." 
 The third exception is that of necessaries ; but these are clearly excepted 
 from the general rule, on the ground that they do not require a consenting 
 mmd. Thus, an infant or an idiot may be liable for necessaries, as was 
 said iu Manhy v. 80011'. The contracts, however, of an infant are only 
 voidable, and not void. Baxter v. Lm-d Portsmouth" is a leading case 
 upon tliis branch of the subject. Abbott, C. J., there says : "At the time 
 the orders were given and executed. Lord Portsmouth was living with his 
 family, and there was no reason to suppose that the plaintifis knew of his 
 insanity. I thought the case veiy distinguisliable from an attempt to 
 enforce a contract not executed, or one made under circumstances which 
 might have induced a I'easonable person to suppose the defendant of 
 unsound mind. The latter would be cases of imposition ; and I desired 
 that my judgment might not be taken to be, that such contracts would 
 bmd, although I was not prepared to say that they would not." In Gore v. 
 Gibson", the distinction is clearly pointed out, namely, that, to make a 
 party liable for necessaries, it is not necessary that there should be the 
 assent of both parties. Pollock, C. B., there says : " With regard, how- 
 ever, to contracts which it is sought to avoid on the ground of intoxication, 
 there is a distinction between express and implied contracts. Where the 
 right of action is grounded upon a specific distinct contract, requiring the 
 assent of both parties, and one of them is incapable of assenting, in such a 
 case tliere can be no binding contract ; but in many cases the law does not 
 
 > Cro. EliV. 622. = 3 Mod. 305. ^ Hob. 220. 
 
 ; Eep.124. M2Eep.l24. » Carth. 435. 
 
 ' ^ ^"'- "2- ' 5 B. & C. 170. :' l,s M. & W. 62.%
 
 SECT. Ill] MOLTON AXD WIFE V. CAMROUX. 44'1 
 
 require an actual agreement between the parties, but implies a contract, 
 from the circumstances ; in fact, the law itself makes the contract for the 
 parties. Tlius, in actions for money had and received to the plaintiff's use, 
 or money paid by him to the defendant's use, the action may lie against 
 the defendant, even tliough he may have protested against such a contract. 
 So, a tradesman who supplies a drunken man with necessaries may recover 
 the price of them, if the party keeps them when he becomes sober, 
 although a count for goods bargained and sold would fail. In this case, 
 the defendant is still liable for the consideration for his indorsement, 
 although the indorsement itself can give the plaintiff no title." [Parke, B. 
 A fourth exception is mentioned in Beverley s case, viz. a recognisance. 
 Alderson, B. Suppose the lunatic is benefited, do you argue that in such 
 case the contract is void ]] It is submitted that it would be. [He also 
 referred to Niell v. Morleij\ and Kent's Conmieutary, 451.] In Turner v. 
 Meyers', Sir W. Scott says : "It is, I conceive, perfectly clear in law, that 
 a party may come forward to maintain his own past incapacity, and also, 
 that a defect of incapacity invalidates the contract of marriage, as well as 
 any other contract. It is true, that there are some obscure dicta in the 
 earlier commentators on the law", that a marriage of an insane person 
 could not be invalidated on that account — founded, I presume, on some 
 notion that prevailed in the dark ages, of the mystei'ious nature of the 
 contract of marriage, in which its spiritual nature almost entirely obliterated 
 its civil character. In more modern times, it has been considered in its 
 proper light, as a civil contract as well as a religious vow, and, like all 
 ci\'il contracts, will be invalidated by want of consent of capable persons. " 
 [Pollock, C. B. I recollect a case where a marriage was set aside, although 
 there was no appearance of lunacy at the time of the offer of marriage.] 
 Pothier, in his Treatise on Obligation*, says : "A contract is a particular 
 kind of agreement; to understand the natui'e of a contract, we should, 
 therefore, previously understand the nature of an agreement. An agree- 
 ment is the consent of two or more persons to form some engagement, or 
 to rescind or modify an engagement already made, Duorum vel plurium 
 in idem placitum consensus." Again, in speaking of persons capable or 
 incapable of contracting, he says", "The essence of a contract consisting in 
 consent, it follows that a person must be capable of giving his consent, and 
 consequently, must have the use of his reason, in order to be able to 
 contract." In the Appendix to that article, tlie distinction is pointed out 
 between persons incapable by law of contracting, and those incapable by 
 nature. 
 
 Secondly, the annuity is void, for want of the inrolment of a memorial, 
 in pursuance of the statute 53 Geo. 3, c. 141. [Parke, B. If the grantor 
 of an annuity chooses to go on paying it, it does not lie in the mouth of 
 the grantee to say tliat the annuity is void. If any point was ever settled 
 
 1 9 Ves. 478. = 1 HagR. C. E. 414. ^ Sanchez. Ub. 1, disp. 8, num. 15. 
 
 •» r. 1, c. 1, s. I, art. 1. •'■ Id., art. 4.
 
 442 MOLTOX AND WIFE V. CAMROUX. [CHAP. IV 
 
 I should say tlmt w:is.] The 17 Geo. 3, c. 20, s. 1, declares, that all 
 deeds, whereby annuities are granted, shall be null and void to all intents 
 and purposes, unless a memorial be registered in manner prescribed by 
 that act. An opinion has long prevailed, that the statute was intended 
 for the lienefit of grantors only, and therefore the word "void" must be 
 construed "voidable;" that doctrine, however, is at variance with the 
 object of the legislature. In Crosley v. A rkwriffht ', where a person, against 
 whom a fi. fa. issued, was in possession of goods under a deed given in 
 consideration of an antecedent debt and an annuity, of which no memorial 
 had been inrolled, it was held that the sheriff' might return nulla bona, for 
 the annuity deed was absolutely void. Buller, J., there says, " The words 
 of this statute are as strong as possible ; it makes the deed void to all 
 intents and purposes whatsoever." Saunders v. Uardinge' also decided, 
 tliat every deed by which an annuity is secured, and which is not properly 
 registered, is void, not voidalile only. In Denii v. Dolman^, which is to 
 the same effect, Lord Kenyon adverts to the distinction between the 
 language of the 17 Geo. 3, c. 26, s. 1, and that of the Registration Act, 
 7 Anne, c. 20, s. 1, which declares that a conveyance not registered "shall 
 be adjudged fraudulent and void against any subsequent purchaser or 
 mortgagee for valuable consideration." Some expressions of Tindal, C. J., 
 in the case of Covper v. Godmond*, have given rise to a contrary doctrine. 
 That case proceeded on the authority of Weddel v. Li/nain^, Wateis v. 
 ManseW, and Davis v. Bryan' ; the former of which alone is in point, but, 
 at the same time, is a Nisi Prius decision which never received the 
 consideration of the Court in banc. The true mode of construing statutes 
 is to adhere to the ordinary meaning of the words, unless that is at 
 variance with the intention of the legislature : Becke v. Smith', Biffin, v. 
 YorkeA 
 
 Per CuRlAll: — We feel no doubt about the last point. Both reason 
 and authority shew that it is not competent for the grantee of an annuity, 
 who has omitted to inrol a memorial, to profit by his own default, and set 
 up the want of registration against the grantor. The law was settled by 
 the cases of Davis v. Bryan^, Churchill v. Berirand", and C'oioper v. 
 Godniond*. 
 
 Giirney for the defendant. It is conceded that an unexecuted contract 
 by a lunatic camiot be enforced; but there is no case in which an executed 
 contract, made for valuable consideration, and without notice of fraud, 
 has been held void. In Palmer v. I'arkhurst", the bill charged that the 
 pretended satisfaction was not valuable, and was done in prejudice of the 
 lunatic; the answer did not state it to be valuable. In Clerk v. Clerk'' the 
 
 ' 2 T. R. 603. = 5 T. R. 9. 3 5 T. B. 641. 
 
 « 9 Bing. 748. s 1 Esp. 309. « 3 Taunt. 56. 
 
 ' 6 B. & C. 651. s 2 M. & W. 191. ^ » 5 M. & G. 428. 
 
 " 2 G. it D. 548. 11 Ch. Cas. 113. 12 2 Vern. 413.
 
 SECT. Ill] MOLTOX AXD WIFE V. CAMROUX. 443 
 
 conveyance was voluntary and without consideration. In Addison v. 
 Dawson^ fraud was alleged and proved. Howard v. Digby' sliews that 
 the law will sometimes imply a contract, notwithstanding lunacy. The 
 earlier cases do not proceed on the ground, now exploded, tliat a lunatic 
 cannot stultify himself, but that such contracts are not fair and equal 
 between the parties. On that principle, an e.xchange, if equal, was held 
 good. Perkins, in his Profitable Book^, says, "And if a man of unsound 
 memory, being seised of land in fee, exclianges the same with a stranger 
 for other land in fee, and the exchange is executed, and lie of unsound 
 memory dies, and his heir enters into the land taken in exchange by his 
 father, now he shall not avoid this exchange." So witli respect to partition, 
 in Co. Litt. IGG, a., it is said, "If coparceners make partition at full age, 
 and unmarried, and of sane memorie, of lands in fee simple, it is good and 
 firm for e\'er, albeit the values be unequal ; but if it be of lands entailed, 
 or if any of the parceners be of non sane memorie, it sliall bind the parties 
 themselves, but not their issue, unless it be equal." Also in Bac. Abr. tit. 
 "Idiots and Lunatics," (F), it is said, "The feoffment of an idiot or non 
 compos is not void, but voidable ; but it cannot be avoided by himself, by 
 entry, itc. ; and the reason hereof, given in some books, is, as before 
 observed, because no man by law is permitted to disable himself. The 
 better reason in this case seems to be, that, anciently, these feoffments 
 were not only made for the benefit of the parties, but of the realm, being 
 annually paid for by the attendance of the tenants, in military service or 
 in tillage, and so were presumed to be equally for the benefit of the lord 
 and tenant; and therefore, they were not holden to be void in themselves." 
 A lunatic may grant by fine ; for, that proceeding having formerly taken 
 place befoi'e a judge, he was presumed to guard against any unfair 
 advantage being taken of the lunatic : Murley v. Sherren''. [Parke, B. 
 Was it not rather that the Judge was supposed to take care that the pai-ty 
 was in a fit state of mind 1] The form of pleas in avoidance of contracts, 
 on the ground of lunacy or drunkenness, shews that the inquiry in tiiose 
 cases is as to the transaction being fair ; for such pleas invariably contain 
 an averment of notice : Dane v. Viscountess Kirkwall'', Gore v. Gibson". 
 In Sentance v. Puule', where the defence of imbecility of mind was set up 
 in an action by indorsee against maker of a promissory note. Lord 
 Tenterden told the jury, that, "should they be satisfied that the defendant 
 was not conscious of what he was doing, and that he was imposed upon by 
 reason of his imbecility of mind, they ought to find for him." That learned 
 judge evidently considered, that the mere fact of being imbecile was not 
 sufticient to avoid the contract, without shewing that an unfair advantage 
 had been taken. There is no distinction in principle between a contract 
 by a lunatic for necessaries or for any other purpose, except that 
 
 i2Vern. 678. - 2 CI. & Fin. 034. ^ Tit. "Exchange," pi. 298. 
 
 J8A. &E. 754. 5 8 c. & 1'. fi79. « l:-i M. & W. (;23. ~ 3 C. A P. 1.
 
 444 MOLTON AND WIFE V. CAMROUX. [CHAP. IV 
 
 necessaries are evitleiice to shew the fairness of tlie contract. It is true 
 tliat Baxter v. T/tf. Earl of Portsmouth^ was a case of necessaries; but the 
 judgment of Lord Tenterden proceeds on the ground, that the only contracts 
 open to dispute are those not executed, or made under circumstances 
 wliicli niiiiht have induced a reasonable person to suppose the party was of 
 unsound mind. Williams v. Wentivorth^ shews that, in the case of neces- 
 saries supplied to a lunatic, the law will imply a promise to pay. In 
 Brotmie v. Joddrell', the defendant was charged on a contract, as a member 
 of an institution, and Lord Tenterden ruled that unsoundness of mind was 
 no defence, unless it were shewn that the plaintiff imposed on the defen- 
 ilant. Reference is there made to a case of Levij v. Baker, in which the 
 rulin<' of Best, J., is to the same effect. Dane v. Viscountess Kirkwall*, 
 and Clarke v. Metcalfe, are also cases in which lunatics were held liable on 
 contracts, though not for necessaries. No case has yet decided, that an 
 executed contract, if fair and bona fide, can be questioned on the ground 
 of the lunacy of one of tlie parties. It is said that a lunatic is not 
 criminally responsible ; but the more correct statement would be, that a 
 person being a lunatic cannot be guilty of that which amounts to murder 
 or hifh treason. [Parke, B. In Beverley s case''. Lord Coke says, that a 
 lunatic may commit liigh treason if he kills or offers to kill the King.] A 
 lunatic is liable civilly for a trespass ; he is also liable as an innkeeper, for 
 the loss of his guest's goods : Cross v. Andrews'. Whether or no he can 
 state an account, seems undecided : Tarhiick v. Bispham". In Selhi/ v. 
 Jackson^, the Court refused to set aside deeds executed by a lunatic while 
 under restraint in an asylum. The Master of the Rolls, in delivering 
 judgment, says : " In this case it is very remarkable, that there is no 
 allegation of fraud against the defendants, no pretence that coercion was 
 used, or any stratagem, or any contrivance, employed to compel or induce 
 the plaintiff to do an act in any way tending to the personal benefit of the 
 defendants." This case falls within the rule laid down in H^iell v. Morley^", 
 viz. tliat a court of equity will not interfere to set aside the contract of a 
 lunatic, if fair and without notice, especially where the parties cannot be 
 reinstated. The question is not, whether the payment of the premiums 
 could have been enforced against the lunatic in his lifetime, but whether 
 the purchase-money can now be recovered back. In many respects the case 
 of a lunatic is assimilated to that of an infant ; and the observations of 
 Lord Mansfield, in Zouch v. Parsons", are applicable to both, viz., that 
 " the privilege is a shield, and not a sword." This is like the attempt to 
 recover premiums paid on an insurance without interest ; in which case it 
 has been held, that the premiums cannot be recovered after the risk has 
 been run : Lowry v. Boiirdieu''. So also with respect to premiums paid on a 
 
 ! 5 B. & C. 170. 2 5 Beav. 325. a 3 c. & p. 30. 
 
 ■» 8 C. & P. 679. = Cited in Smith on Contracts, 230. 
 
 '• 4 Rep. 123 a. ? Cio. Eliz. 622. s 2 M. & W. 2. 
 
 " 6 Beav. 102. "' 9 Ves. jun. 478. " 1 W. Bl. 575. 1- 2 Dougl. 468.
 
 SECT, in] MOLTON AND WIFE V. CAMROUX. 445 
 
 policy void under the 19 Geo. 3, c. 37 : Ajidree v. Fletcher' ; or any illegal 
 assurance : Lubbock v. Potts' ; Morck v. Abel''. 
 
 Needham, in reply. The case of Baxter v. The Earl of Portsmouth did 
 ftot establish the rule, but the exception. The maxim of the Roman law, 
 "furiosus nullum negotium gerere potest, quia non intelligit quod agit'", 
 has been adopted by all text writers in every civilised community. Upon 
 what principle is it that a lunatic cannot suffer a recovery, and that his 
 bond is void, unless it be that he cannot make a contract ? In Tliompson 
 V. Leach'', the Court say, "The grants of infants and persons non compos 
 are parallel, both in law and reason." A lunatic, not having the power of 
 consenting, is incapable of making a contract. 
 
 Cur adv. vuU. 
 
 The judgment of the Court was now delivered by 
 
 Pollock, C. B. This was an action for money had and received, 
 brought to recover from the defendant, (as secretary to an Assurance and 
 Annuity Society), two sums paid by the intestate Thomas Lee, in his life- 
 time, as the price or consideration for two annuities granted by the society, 
 determinable with his life. At the trial, the money was claimed on two 
 grounds : first, that the grantee was not of sound mind at the time the 
 contract 'vyas made, and was therefore incapable of contracting, and, there 
 being no contract, or a void contract, the money was recoverable; secondly, 
 that there was no memorial of the annuities inrolled, and therefore they 
 were void, and the money could be recovered back. Both the points were 
 reserved at the trial ; and subsequently, on a motion for a new trial, a 
 special verdict was entered by agreement, setting forth the facts of the 
 case, and raising the two points above stated. 
 
 The special verdict was argued before us on the 17th and 21st of 
 January last, when the Court expressed a very clear opinion, that the 
 second ground, of want of inrolment of a memorial, could not be supported, 
 on the authority of the case of Davis v. Bryan", (and of other cases), where 
 the point was expressly decided : but as to the other ground, the Court 
 took time to consider ; and upon deliberation we are all of opinion, that, 
 upon the finding of the juiy, that the " purchasing the said annuities were 
 transactions in tlie ordinary course of the affairs of human life, and that 
 the granting of the said annuities were fair transactions, and of good faith, 
 on the part of the company, without any knowledge or notice on the part 
 of the company of the unsoundness of mind," the action is not sustainable; 
 and our judgment nmst be for the defendant. 
 
 As to the rule of the common law, the older authorities differ. Ac- 
 cording to the opinion of Littleton, s. 405, and Lord Coke, 1 Inst. 247, b., 
 and Beverley's case', (disagreeing with Fitzherbert's "Natura Brevium" 
 
 > 3 T. R. 266. = 7 East, 449. » 3 Bos. & P. 35. 
 
 * Inst., lib. 3, tit. 20, s. 8. ■> 3 Mod. 310. « 6 B. & C. 651. 
 
 ^ 4 Eep. 123 a.
 
 446 JIOLTON AND WIFE V. CAMROUX. [CHAP. IV 
 
 202), no man could be allowed to stultify himself, and avoid liis acts, on 
 the ground of liis being non compos mentis ; but certainly the law did not 
 allow the party liimself to set aside, by any plea of insanity, acts of a 
 public and notorious character, such as acts done in a court of record, and 
 feoffments with livery of seisin, the doing or executing of which would not 
 presumably be allowed, unless a party appeared to be of sound mind. 
 
 The purchase also by a lunatic was valid, and vested the estate, and 
 tliough his heirs might disagree to it, he could not'. 
 
 But the rule, as above laid down by Littleton and Coke, has, no doubt, 
 in modem times been relaxed, and unsoundness of mind, (as also intoxica- 
 tion), would now be a good defence to an action upon a contract, if it could 
 be shewn that the defendant was not of capacity to contract, and the 
 plaintiff knew it. The cases of Dane v. Viscountess Kirkwall/', and Gore 
 V. Gibson^ were cited to prove this, and their authority fully supports the 
 doctrine contended for. The plaintift"s counsel distinguished the cases of 
 Browne v. Joddrell* , and Baxter v. the Earl of Portsmuutli'', and other cases 
 of that sort, on the ground that necessaries furnished to a lunatic were an 
 exception to the general doctrine that he could not make a contract ; and 
 he cited the judgment of the Lord Chief Baron, in the case of Gm-e v. 
 Gibson as shewing a distinction between express and implied contracts, 
 and deciding that all express contracts were void, if the parties to them 
 were incapable of making a contract. On the other hand, it was argued 
 by the defendant's counsel that there was a distinction between contracts 
 executed and executory ; that executory contracts could not be enforced, but 
 that executed contracts could not be disturbed if made in good faith, 
 and without notice of the incapacity ; and he called our attention to this, 
 that all the cases cited were cases where damages for the breach of an 
 executory contract were in question, but that no case had yet decided that 
 an executed contract, if perfectly fair and bona fide, could be questioned 
 on the ground of the unsoundness of mind of one of the parties ; and 
 he cited the cases of i/otmrfZv. The Earlof Dighu", Williams v. Wentworth\ 
 and Selby v. Jackson", to shew that the House of Lords in the first case, 
 and Lord Langdale in the two last, had recognised the liability of lunatics 
 or their estate, in respect of contracts bona fide acted upon. The case of 
 Mell V. Morley", before Sir William Grant, to the same effect, had been 
 cited before by the counsel for the plaintiff. 
 
 As far as we are aware, this is the first case in which it has been 
 broadly contended that the executed contracts of a lunatic must be dealt 
 with as absolutely void, however entered into, and although perfectly fair, 
 bona fide, reasonable, and without notice on the part of those who have 
 dealt with the lunatic. 
 
 > Co. Litt. 2. = 8 C. & P. 679. 3 13 ji. ^. -^y. 623. 
 
 ■• 1 Moo. & M. 105. » 2 C. & P. 178; 5 B. & C. 170. « 2 CI. & Fin. 634. 
 
 ' Beav. 325. » 6 Beav. 192. » 9 Ves. 478. 
 
 I
 
 SECT. Ill] MOLTON AND WIFE r. CAMROUX. 447 
 
 On looking into the cases at law, we find that, in Browiie v. Juddrell, 
 Lord Tenterden says : — " I tliink the defence of unsoundness of mind 
 will not avail, unless it be shewn that tlie phiintifl' imposed on the de- 
 fendant." 
 
 In Baxter v. The Earl of Portstnouth\ the Nisi Prius report of which 
 is in 2 C and P., 178, Abbott, C. J., with the concurrence of the rest of 
 the Court, laid down the same doctrine. 
 
 In Dane v. Viscountess Kirkwall, Mr. Justice Patteson, in directing the 
 jury, said, "It is not sufficient that Lady Kirkwall was of unsound mind ; 
 but you must be satisfied that the plaintiff knew it and took advantage of 
 it." This is the result of all the modern authorities, and it is unopposed by 
 any conflicting authorities ; and it is in reality a safe and sound conclusion 
 to which the old doctrine at common law, when properly understood, would 
 conduct us witli reference to this case. 
 
 We are not disposed to lay down so general a proposition as tliat all 
 executed contracts bona fide entered into must be taken as valid, though 
 one of the parties be of unsound mind ; we think, however, that we may 
 safely conclude that when a person, apparently of sound mind, and not 
 known to be otherwise, enters into a contract for the purchase of property 
 which is fair and bona fide, and which is executed in good faith, and the 
 property, the subject-matter of the contract, has been paid for and fully 
 enjoyed, and cannot be restored, and the parties put in statu quo, such 
 contract cannot afterwards be set aside, either by the alleged lunatic, or 
 those who represent him. And this is the present case, for it is the pur- 
 chase of an annuity which has ceased. On these grounds, we think our 
 judgment ought to be for the defendant. 
 
 Judgment for the defendant. 
 
 The plaintiff having brought a writ of error on the judgment of the 
 Court of Exchequer in this case", it was argued' in last Hilary Vacation 
 (February 5 and 7), by 
 
 Needham for tlie plaintiffs, and Gxirney for the defendants. The 
 arguments were substantially the same as those urged in the Court below. 
 The following additional authorities were cited : Plowd. Com. 5 a, 6 a ; 
 Com. Dig., tit. "Agreement," (A.l); Bac. Abr., tit. "Agreement," (A.) ; 
 Bracton, lib. 5, c. 20, ss. 1 ife 2 ; Ilall v. Warren *, Pitt v. Smith'', Stock on 
 Lunacy, p. 38 ; Ex imrte Clarke", Cap-per v. Dnndo\ Sander v. Sander", 
 Turner v. Jfi/ers", Browning v. Reane'", The Countess of Portsmouth v. The 
 
 1 5 B. ct C. 170. " 2 Exch. 487. 
 
 2 Before Pattison, J., Coleridge, J., Coltman, J., Maule, J., Wightman, J., Cresswell, 
 J., Erie, J., and Williams, J. 
 
 * 9 Ves. jun. COS. = 3 Camp. 33. 6 2 Bus. 575. 
 
 7 2 A. & E. 458. 8 2 Coll. 270. ' 1 Hagg. Consist. Rep. 414. 
 
 1° 2 Ph. 69.
 
 448 MOLTON AND WIFE I'. CAMROUX. [CHAP. IV 
 
 Earl of Portsmouth', Groom v. llwmns-, Woods v. Reed^, Biffin v. Yorke', 
 Stepheris v. De Medina', and Weaoer v. Ward". 
 
 Cur. adv. vult. 
 
 Tlie judgment of the Court was now delivered by 
 
 Patteson, J. This was an action for money had and received by tlie 
 administratrix of the grantee of two annuities against the secretary of a 
 Company wlio had granted them, to recover back the consideration money. 
 
 The fii-st ground was, that no memorial of the annuity Iiad been 
 enrolled. The case of Davis v. Bryan' decided, that it was the duty of the 
 grantee to procure the memorial, and that he cannot take advantage 
 of his own neglect to treat the grant as void. The same doctrine was held 
 in Cowper v. Godmond", and in ChurchiU v. BertraiuP, though the points 
 there determined were not precisely the same. We are asked, sitting in a 
 Court of error, to review those cases, but we are of opinion that the 
 doctrine laid down in them is perfectly correct, and that this ground 
 of error entirely fails. 
 
 The second ground was, that the contracts for the annuities were void, 
 by reason of the grantee not being of sound mind and incapable to con- 
 tract. The special verdict finds, " that at the time of the granting of the 
 annuities, and payment of the consideration money, he was a lunatic, and 
 of unsound mind, so as to be incompetent to manage his aflairs ; but 
 of this the Society had not at that time any knowledge. That the pur- 
 chasing of the annuities was in the ordinary course of business ; that they 
 were fair and bona tide transactions ; and that the grantee appeared to 
 the Society to be of sound mind, though he was then in fact of unsound 
 mind." This does not shew such a state of mind in the grantee as to 
 render him necessarily incapable of knowing the nature of his act, and it 
 negatives all knowledge by the Society of his state of mind, and any 
 suspicion whatever of fraud or unfairness of any kind. 
 
 The question, therefore, is broadly raised, whether the mere fact of 
 unsoundness of mind, which was not apparent, is suificient to vacate a fair 
 contract executed by the grantee, by payment of the consideration money, 
 and intended bona fide to be executed by the grantor, by payment of the 
 annuity. The old doctrine was, that a man could not set up his own. 
 lunacy, though such as that lie did not know what he was about in 
 contracting, and the same doctrine was ajiplied to drunkenness. It is 
 true that there are some exceptions in the old authorities, and the doctrine 
 is not laid down uniformly with perfect distinctness ; but, in general, it 
 was as above stated. Modern cases have qualified it, and enabled a man, 
 or his representatives, to shew that he was so lunatic, or drunk, as not to 
 know what he was about when he made a promise, or sealed an instru- 
 
 ' 1 Hagg. Eccl. Eep. 355. - 2 Id. 436. ^ 2 M. & W. 784. 
 
 •• 6 Scott N. E. 233. ■■> 4 Q.C. 422. 6 Hob. 134. 
 
 ' G B. & C. 651. 8 n Biug. 718. ' 3 Q. B. 568.
 
 SECT. Ill] MATTHEWS V. BAXTER. 4-l'l) 
 
 ment. This special verdict hardly .shew.s any such state of mind ; hut, 
 even if it did, the modern cases shew, tiiat when that state of mind was 
 unknown to the other contracting party, and no advantage was taken of 
 the lunatic, the defence cannot prevail, especially where the contract is not 
 merely executory, but executed in the wliole or in part, and the parties 
 cannot be restored altogether to tlieir original position. The cases which 
 are apparently the strongest for the defendant are those of contracts of 
 marriage, decided in the Ecclesiastical Courts. But all those cases are 
 such that the other contracting party must have known, or have had the 
 greatest reason to believe, that the unsound state of mind existed, although 
 they do not appear to have been decided on that precise ground. 
 
 The authorities on the subject were cited at tlie bar, and in the judg- 
 ment of the Court below, so fully, that it is not necessary for us to go 
 tlirough them. We are of opinion that they fully establish the limited 
 doctrine above mentioned ; and that, according to the facts stated in this 
 special verdict, the contract in question was not void at law, so as to 
 enable the representatives of the grantee to maintain this action for money 
 had and received. 
 
 Judgment affirmed. 
 
 MATTHEWS v. BAXTER. 
 In the Exchequer, January 27, 1873. 
 
 [Reported in Law Reports, 8 Exchequer, 132.] 
 
 Declaration for breach of contract in not completing the purchase of 
 houses and land bought of the plaintiff at a .sale by auction. 
 
 Plea, that at the time of making the alleged contract, the defendant 
 was so drunk as to be incapable of transacting business or knowing what 
 he was about, as the plaintiff well knew. 
 
 Replication, that after the defendant became sober, and able to trans- 
 act business, he ratified and confirmed the contract. 
 
 Demurrer and joinder. 
 
 Manisty, Q.C. (Hills, with him), in support of the demurrer. The 
 contract of a man, who was totally drunk and incapable at the time, is not 
 voidable merely, but void: Gore v. Gibson'. It cannot therefore be 
 ratified. Molton v. Camronx', wjiich may be relied on by the plaintiff, 
 only proves that where a lunatic's or drunkard's contract is executed, and 
 the parties to it cannot be replaced in statu quo, such a contract cannot 
 afterwards be set aside. In the present case the contract is executory, 
 and the parties to it can be replaced in their original position. 
 
 ' 13 M. * W. 623. " 2 Ex. 487; 1 Ex. 17; 18 L. J. (Ex.) 68, 3.56; avte p. 437. 
 
 F. 29
 
 450 MATTHEWS V. lUXTEK. [CHAP. IV 
 
 Morgan Lloi/d, coiitiii. The case of Molton v. Camroux', shews that a 
 dninken man's contract is only voidable. Gvre v. Gibson- is no author'ity to 
 the contrary, for although in that case such a contract is spoken of as " void 
 altogether," that expression must be taken with regard to the facts then 
 under consideration. There was no suggestion there of any ratification, 
 and the defendant was entitled to succeed upon proof that his contract was 
 voidable, and that he afterwards voided it. Suppose the defendant wished 
 to enforce the contract. The plaintifl' could not refuse to perform it. 
 And if the defendant could have enforced performance, he certainly had 
 power to confirm it. 
 
 Kelly, C. B. I am of opinion that our judgment must be for the 
 plaintifl'. It has been argued that a contract made by a person who was 
 in the position of the defendant, is absolutely void. But it is difficult to 
 understand this contention. For, surely the defendant, upon coming to his 
 senses, might have said to the plaintifl', " True, I was drunk when I made 
 this contract, but still I mean, now that I am sober, to hold you to it." 
 And if the defendant could say this, there must be a reciprocal right in 
 the other party. The contract cannot be voidable only as regards one 
 party, but void as regards the otlier ; and if the drunken man, upon 
 coming to his senses, ratifies the contract, I think he is bound by it. 
 
 Martin, B. I am of the same opinion. The judges in Gore v. Gibson^ 
 used the word " void," it is true, but I cannot think they meant absolutely 
 void. They simply meant to say that a drunken man's contract could not 
 be enforced against his will. But it by no means follows that it is in- 
 capable of ratification. The case is an authority that this plea is good, 
 but no authority for holding the replication bad. I think that a drunken 
 man when he recovers his senses, might insist on the fulfilment of his 
 bargain, and therefore that he can ratify it, so as to bind himself to 
 a perfomiance of it. 
 
 PiGOTT, B. I agree with the rest of the Court, although with some 
 hesitation. The language of the judges in Gore v. Gibson^ must be taken 
 with regard to the subject then under consideration ; and the word "void' 
 must be taken to mean no more than that the contract could not be 
 enforced in invitum against the defendant. Upon the whole, I think the 
 contract was voidable only, and therefore capable of ratification. 
 
 Pollock, B. I am of the same opinion. The case of Gore v. Gibson' 
 was no doubt rightly decided, but some of the dicta of the judges cannot 
 be supported in all their fulness since the decision in Molton v. Camroux '. 
 I think the contract of a drunken man is voidable and not void. 
 
 Judgment /or the plaintiff. 
 
 ' 2 Ex. 487; 4 Ex. 17; 18 L. J. (Ex.) 68, 35G; ante p. 437. ■' 13 M. & W. G23.
 
 SECT. IV] PYHUS (.'. SMITH. 451 
 
 SECTION IV. 
 
 MARRIED WOMEN. 
 
 MARY SANKY alias WALGRAVE . Plaintant. 
 GOLDING Defendant. 
 
 In Chancery, Anno 21 and 22 Eliz. 
 
 [Reported in Curi/'s Iteports, 124.] 
 
 The plaintant setteth forth in her bill, that she joined with her husband 
 in sale of part of her inheritance, and after, some discord growing be- 
 tween them, they separate themselves ; and one hundred pounds of the 
 money received upon sale of the lands was allotted to the plaintant for her 
 maintenance, and put into the hands of Nicholas Mine, Esquire, and bonds 
 then given for the payment thereof unto Henry Golding, deceased, to tlie 
 use of the plaintant ; which bonds are come to the defendant, as adminis- 
 trator to the said Henry Golding, deceased, who refuseth to deliver the 
 same to the plaintant, and hereupon she prayeth relief ; the defendant doth 
 demur in law, because the plaintant sueth without her husband ; and it is 
 ordered the defendant shall answer directly. 
 
 PYBUS V. SMITH. 
 In Chancery, August 3, 1791. 
 
 [Reported in 3 Broicns Cluineery Cases, 340.] 
 
 By lease and release, dated 5th and 6th May 1785, being a settlement 
 subsequent to the marriage of the defendant Thomas Vernon with Anna 
 Maria his wife, the said Thomas and Anna Maria, in pursuance of a decree 
 in the Court of Chancery, released to the defendants Smith and Leader a 
 messuage in Garland Alley, Bishopsgate Street, in trust to permit said 
 Anna Maria, to receive, or otherwise during the life of said Anna Maria, 
 to pay, apply, and dispose of the rents and profits unto such person or 
 persons, in such shares and proportions, manner, and form, and to and for 
 such uses and purposes, as she, the said Anna INIaria Vernon should, by 
 any writing or writings under her proper hand, fiom time to time, direct 
 or appoint ; and in default of such direction, then into the proper hands 
 
 20—2
 
 452 PYliUS V. SMITH. [chap. IV 
 
 of the said Anna Maria, and for her sole and separate use ; and after tlie 
 decease of the said Anna Maria, then upon trust for such person, for such 
 estate and estates, in such shares and proportions, and for such uses, and 
 chargeable with such sums, and subject to such powers, provisions, de- 
 clarations, limitations, and agreements, and in such manner and form, as 
 the said Anna Maria Vernon, whether covert or sole, by any deed or 
 instrument in writing, with or without power of revocation, to be by her 
 only executed, under her hand and seal, in the presence of two or more 
 credible witnesses, should direct, limit, or appoint ; and in default thereof, 
 and as to such part whereof there should be no appointment, in trust for 
 the said Anna Maria Vernon, her heirs and assigns for ever. And it was 
 by tlie said indenture witnessed, that the said trustees should stand 
 possessed of 2,53H. four per cent. Bank annuities, mentioned in the said 
 decree, during the life of the said Anna Maria Vernon, to pay and apply 
 the dividends unto such persons, and in such shares and proportions, 
 manner and form, and to and for such uses, intents, and purposes, as the 
 said Anna Maria Vernon should, by any writing or writings under her 
 hand, direct and appoint ; and in default thereof, to pay the same into the 
 hands of the said Anna Maria Vernon, for her sole and separate use ; and 
 after the decease of the said Anna Maria Vernon, to sell the same, and 
 pay and apply the money arising therefrom to and amongst all and every 
 the child and children of the said Anna Maria by the said Thomas ; and 
 in case there should be no child, or all of them should die under twenty- 
 one, unmarried, then to such uses as said Anna Maria Vernon should by 
 any deed or instrument in writing, under her hand and seal, executed in 
 the presence of, and attested by two or more credible witnesses, direct or 
 appoint ; and in default thereof, for the executors and administrators of 
 said Anna Maria Vernon. 
 
 The defendant Thomas Vernon was a trader, and dealt with the 
 plaintiffs, who were bankers, in the way of their trade, and applied to 
 them to accept and pay such drafts as he should draw upon them, or make 
 payable at their house, which they consented to; but in 1785, being con- 
 siderably in advance on his account, they required him to give them 
 security, which he proposed to do upon this separate property of the 
 wife's; and by indenture, dated 15th August, 1785, made between the 
 said defendant Thomas Vernon of the first part, the defendant Anna 
 Maria Vernon of the second part, and the plaintiffs of the third part 
 reciting the settlement of the 5th May preceding, it was witnessed, and 
 Thomas Vernon thereby covenanted to supply plaintiffs, their executors 
 and administrators, with cash sufficient to pay and discharge all drafts 
 or bills drawn or made payable by him at their banking-house, or which 
 should become due or payable ; the defendant Anna Maria Vernon did, by 
 virtue and in pursuance of her power, direct and appoint that the rents 
 and profits then due, or to become due, in respect of the premisses, 
 should, during her life, be paid by tlie tru.stees to tlie plaintiffs : and from
 
 SECT. IV] PYBUS V. SMITH. 4.").'> 
 
 and after her decease tlie trustees should stand seised thereof to the use of 
 plaintitTs ; and she also directed and appointed, that the interest and 
 dividends then due, or to become due, of all the 2,b3ll. four per cents, 
 should be paid by the trustees to plaintiil's, and immediately after her 
 decease without issue, should belong to, and the trustees should be 
 possessed thereof, for the use of the plaintitfs, upon trust, in case default 
 should be made by the said Tliomas Vernon in payment to plaiutifls, their 
 executors or administrators, of any of the sum or suras of money so to lie 
 advanced by them to said Thomas Vei'non ; that it should be lawful to 
 plaintiffs, &c. to sell the reversion in the real estate, and the contingent 
 interest in the money in the funds, or to raise and take up by mortgage 
 thereof so much money as, with the rents and dividends, should be 
 necessary for paying the costs they siiould be put to, and for reimbursing 
 them all sums in which the said Thomas Vernon should be indebted to 
 them on account of money so advanced, and interest thereon ; and if 
 there should be any surplus, to pay the same to her ; and the deed con- 
 tained a power of attorney from the trustees to plaintiffs to receive the 
 rents and dividends, and a covenant from plaintiffs, in case they were kept 
 indemnified, to re-convey. 
 
 By deed-poll, dated 16th August, 1785, under the hand and seal of 
 Anna Maria Vernon, she, in consideration of the marriage, and of love 
 and affection, and by virtue of her power, directed the trustees to pay the 
 rents and, after her decease, to stand seized of the real estate to the use 
 of her husband, in fee ; and also to pay to him the dividends of the money 
 in the funds ; and after her decease, without issue, to stand possessed of 
 the principal in trust for him absolutely. 
 
 In November, 1786, the plaintiffs having discovered this deed-poll, and 
 having observed that though the deed of appointment extended to an 
 indemnity against money paid upon drafts, or bills drawn upon, or made 
 payable at their house, by defendant Vernon, that it did not extend to 
 money paid for discount of bills or promissory notes for the accommodation 
 of the defendant Thomas, applied to him for a further security against 
 such monies advanced by way of discount, and by indentures of lease 
 and release, dated 6th and 7th December, 1786, the estate and monies 
 in the funds were made a security for sums so advanced, or to be ad- 
 vanced. 
 
 The plaintiffs afterwards discounted several notes and bills of ex- 
 change for defendant Thomas, and were 1,500/. in advance on his account, 
 when, in 1788, a commission of bankruptcy was issued against liim ; upon 
 which they applied to the trustees to pay the rents and dividends to them, 
 and to join them in the sale of the reversionary and contingent interest of 
 defendant Anna Maria in the real estate, and money in the funds, in order 
 to their indemnification ; and, upon their refusal, tiled the present bill, the 
 prayer of which was, that the defendant should pay such rents and 
 ili\ idends, and join in such sale.
 
 454 PYBUS V. SMITH. [chap. IV 
 
 Mrs. Vernon, in lior answer, submitted tliat the rents and profits of the 
 real estate, and the dividends upon the money in the funds, ought to be 
 paid into her own hands, for her separate use, and that they were not 
 liable to tlie debts or engagements of her husband ; and said, that she did 
 not conceive, at the time of executing the deed, that slie was conveying 
 her life estate and interest, but only the reversion in case of her death 
 ■without issue ; and therefore hoped that the trustees would be decreed to 
 pay the same to her. 
 
 Tlie cause came on to be heard in Trinity Term, 1790, when it was 
 referred to the Master to report under what circumstances the deed 
 was executed ; and the Master was to examine the parties on inter- 
 rogatories. 
 
 The Master reported, that, upon examination of witnesses examined 
 before him on interrogatories, it appeared that the deeds were executed by 
 the defendants Thomas and Anna Maria Vernon freely and readily, and 
 that no arguments or persuasions were used, at the time of executing the 
 said deeds by any person, to induce tliem to execute the same ; but that 
 the witnesses did not recollect that the deeds were read, or the purport 
 thereof explained to the defendant Anna Maria ; but one of the witnesses, 
 (wlio prepared the deed) said, that it was his constant practice to read, or 
 explain, to all parties executing deeds prepared by him, and particularly to 
 married women, the nature and contents of such deeds ; and therefore he 
 was induced to believe that the deeds so executed were read, or the pur- 
 port thereof explained to the defendants, and understood by them, previous 
 to the execution of them : and that the plaintiffs, upon their examination, 
 stated that the security was executed upon the proposal of Thomas 
 Vernon, that they had no concern in the preparation, and that tliey did 
 not know of the preparation thereof until after the execution ; but they 
 believed the defendant Anna Maria knew that she subjected not only 
 the contingent reversion of her property, but also the income during her 
 life, to the payment of the money which was, or should become due, 
 from her husband to the plaintifls ; and that no attempt was made, or 
 endeavour used to make her believe that she was only charging her rever- 
 sionary interest with the same, and said that they did not advance any 
 money to the defendant Anna Maria for joining in the deeds. 
 
 The cause came on now upon the Master's report; — Mr. Solicitor 
 General, for the plaintifls, stated the facts, and argued that a feme covert 
 was, as to her separate property, exactly in the same state as a feme sole ; 
 and that the payments, in this case, being to be made to her from time to 
 time, could make no diflerence. 
 
 Mr. Lloyd and Mr. J'ledham for the defendants, said the present case 
 involved two questions ; 1st. Whether the Court will give its assistance to 
 carry the voluntary agreement into execution, even where the woman has 
 received the money, and the transaction is perfectly fair. 2nd. Whetlier 
 this is a case in which the Court will lend such assistance. It is certainly
 
 SECT. IV] PYBUS V. SMITH. 455 
 
 in the power of a parent to give a daughter, who is married, a provision 
 wliich shall be payable from month to month, or at other periods, without 
 giving her a power to assign it over at once. Here the legal estate is in 
 the trustees, to receive the rents and interests, and to pay them to Mrs. 
 Vernon, or to permit her to receive them, which is the same tiling ; for 
 though to permit a man to receive rents and profits would, at law, be a 
 good use, here the use would be executed in the trustees. The title of the 
 plaintiffs is equitable and voluntary, and with full notice that she was a 
 married woman ; and the bill states, that, previous to the transaction, the 
 plaintiffs had trusted Vernon as far as they dared. 
 
 Mrs. Vernon was an infant, and a ward of this Court, when Vernon 
 carried her off to Scotland. It was agreed between him and her friends, 
 that he should have part of her fortune, upon settling the rest upon her 
 and her cliildren. Upon this, he made a proposal, by which, had it been 
 carried into execution, she could not have appointed it in this way. When 
 your Lordship referred it to the Master he disapproved it, and the present 
 settlement was afterwards made. There are many cases where the 
 husband's proposal has been considered as the agreement. In such a 
 case, your Lordship will never permit the trustees to be converted from 
 trustees for her to trustees for the plaintiffs. 
 
 The trusts are, that they shall permit and suffer her to take the rents 
 from time to time ; the proposals were, that they should pay them into her 
 own hands ; she was a married woman, and the Court intended it should 
 be a provision from quarter to quarter, as the rents and interests were 
 paid. It was intended as a maintenance, but the Court could not intend 
 that she should, by one stroke, put an end to her future subsistence, 
 but only that she should appoint the dividends as they became due. 
 
 If this is not so, it would be of no use to put in trustees into these 
 settlements. Here the defendant has disposed of her provision without 
 their intervention, and swears that she was not informed the conveyance 
 extended further than her reversionary interest. 
 
 In Allen v. Papworth, 1 Vesey, 163, where it was held the wife might 
 appoint her separate property for her husband's debts, she had the whole 
 property, it was not intended as a maintenance. The inference from 
 Grhjhy v. Cox, S. B. 518, is, that if the words there had been, as they are 
 in this, " to pay from time to time," the wife could not have conveyed it 
 away'. In Machorro v. Utonehouse, cited in Uulme v. Tenant', the pur- 
 chaser's bill was dismissed ; that case is well worth considering, for Sir 
 Thomas Sewell was in great business at the time the cases on the subject 
 were determined, and must have known what was done. 
 
 In this case, the agreement being different from the first proposal, 
 the children would be entitled to have the settlement varied. 
 
 As to the propriety of carrying the agreement into execution, it is 
 
 ' Ibjik v. I'rkc. 3 Vesey, 437. = 1 Bro. C. C. 18; 1 L. C. E(|. 481.
 
 4jG PYBUS v. smith. [chap. IV 
 
 merely an eciuitable agreement, and the plaintiflfs are applying to change 
 the terms of it. If the agreement is an improper one the Court will 
 not carry it into execution ; it was executed either in great distress, or 
 under the control of her husband, and the deeds were prepared from the 
 instructions of the husband alone ; 1)y her answer it does not appear 
 she knew what was done ; the plaintiffs knew she was to receive no com- 
 pensation for it. 
 
 If the wife conveys her separate property to the husband himself, with- 
 out doubt that will not avail ; yet there is no positive law that such a con- 
 veyance shall be set aside. 
 
 If they were failing in tiieir circumstances, that would be a sufficient 
 ground to set the transaction aside. 
 
 Lord Chancellor said, if the point was open, he should have thought 
 that a feme covert who iiad a separate estate should not part with it with- 
 out an examination ; but a feme covert had been considered by the 
 Court, with respect to her separate property, as a feme sole ; therefore, 
 though he had been desirous of going as far as he could, he found he 
 had gone too far upon a former occasion. If a feme covert sees what 
 she is about the Court allows of her alienation of her separate pro- 
 perty. 
 
 If it was the intention of a parent to give a provision to a child 
 in such a way that she cannot alienate it, he saw no objection to its 
 being done ; but such intention must be expressed in clear terms. 
 
 It was referred to the Master to inquire whether the plaintiffs had any 
 other security '. 
 
 1 "When once it was established that the separate estate of a married woman was to 
 be so far enjoyed by her as a feme sole, as to bring with it all the incidents of property, 
 and that she might therefore dispose of it as a feme sole might do, it was found that, 
 to secure to her the desired protection against the marital rights, it was necessary to 
 qualify and fetter the gift of the sepai'ate estate by prohibiting anticipation. The 
 power to do this was established by authority, not now to be questioned, but which 
 could only have been founded upon the power of this Court to model and qualify an 
 interest in property which it had itself created, without regard to those rules which 
 the law has established for regulating the eujoyment of property in other cases. 
 
 If any rule, therefore, were now to be adopted, by which the separate estate should, 
 in any cases, be divested of the protection of the clause against anticipation, it would, 
 in such cases, defeat the object of the power so assumed. 
 
 A feme covert, with separate estate, not protected by a clause against anticipation, 
 is, in most cases, in a less secure situation than if the property had been held for her 
 simply upon trust. In the latter case, this Court, with the assistance of her trustees, 
 can effectually protect her: in the other, her sole dependence must be upon her hus- 
 band not exercising that influence or control, which, if exercised, would, in aU proba- 
 biUty, procure the destruction of her separate estate. In the case of a gift of separate 
 estate with a clause against anticipation, the author of the gift supposes that he has 
 effectually protected the wife against such influence or control. Upon what principle 
 can it be that this Court should subject her to it, and by so doing defeat his purpose 
 and completely alter the character and security of his gift ? The separate estate and the 
 prohibition of anticipation are equally creatures of equity, and equally inconsistent with
 
 SECT. IV] HUBERTS V. WATKINS AND HOWELLS. 4.57 
 
 EGBERTS I'. WATKINS AND HOWELLS. 
 In the High Court of Justice, May 12, 1877. 
 
 [Rejwrted in 46 Law Journal Reports, Q. B. 552.] 
 
 This was an action on a joint and several promissory note due on 
 January 12, 1876, and made on January 12, 1874, by the two defendants, 
 and one Rhys Howells, since deceased, who was the husband of the de- 
 fendant Margaret Howells. 
 
 It was proved at tlie trial tliat Margaret Howells had property settled 
 upon her without power of anticipation, and that she was discovert at the 
 time of action brought; she had never in any way acknowledged or ratified 
 the contract since her husband's death. Judgment was given at tlie trial 
 for the plaintiff against Watkins, and tlie learned Judge reserved the 
 question as to the liability of Margaret Howells for further consideration. 
 
 £. T. Williams and E. J. Dunn (on April 2.5) moved to enter judgment 
 for the plaintiff. Hulme v. Tenant^ and Murray v. Barlee' are authorities 
 that if this defendant had a separate estate at the time, then she has 
 charged it by signing this note. It must be admitted that we cannot 
 touch the real estate which she possesses under the will, because there 
 has been no deed, but we have a right against the rents. 
 
 Mclntyre and W. D. Benson contra. If at the time of the contract 
 she had no power to charge, then the note is void — Jackson v. Hobhouse' 
 and Fitzgibbon v. Blake*. She could not be bound unless it is presumed 
 tliat she intended to bind the estate, and Equity would not presume that, 
 when the evidence is to the contrary. 
 
 Cur. adv. vuli. 
 
 The following judgment was (on May 12) delivered by — • 
 Lush, J. This action is brought upon a joint and several promissory 
 note, made by the defendant Watkins, the defendant Margaret Howells, 
 then the wife of Rhys Howells, and by her husband, for the payment to 
 the plaintiff on the 12th of January, 1876, of 1.50/., with interest at five 
 per cent. 
 
 Rhys Howells died before the commencement of the action. Margaret 
 Howells pleaded lier coverture at the date of the note, and in answer to 
 the suggestion that she had property settled to her separate use, denied 
 that she had any such property, but that if she had it was settled on and 
 vested in her for her separate use without the power of anticipation or 
 
 the ordinary rules of property. The one is only a restriction and qualifieation of the 
 other. The two must stand or fall together." Per Lord Cottenham in Tullett v. Arm- 
 strong, 4 Myhie & Craig, 393. Ed. 
 
 1 1 Wh. & Tu. L. Ca. in Eq. 481. = 3 Myl. * K. 220. 
 
 ^ 2 Mer. 488. * 3 Ir. Ch. Rep. 328.
 
 458 ROBERTS V. WATKINS AND HOWELLS. [CHAP. iv' 
 
 alienation. It was proved at tlie trial that she had property so settled 
 without power of anticipation, and the question was then raised whether, 
 beinj,' discovert at tlie time of action brought, she was liable in respect of 
 that property, and if she was, whether the property could be reached by 
 any process or proceeding in this action. 
 
 Tliere was no evidence that she had in any way acknowledged or 
 ratified the contract since her husband's death. 
 
 There being no facts in dispute no verdict was taken. I resei'ved 
 for further consideration my judgment, and the question has since been 
 argued before me upon motion for judgment. 
 
 At Common Law the contract of a feme covert was void, so that it 
 could not be enforced against her in her husband's lifetime or after his 
 death. Equity abating the rigour of the Common Law which vested all 
 her property in her husband permitted her to hold as a feme sole property 
 settled to her separate use, with all its privileges and incidents, including 
 the jus disponeudi — Feltiplace v. Gorges', and the power of contracting 
 debts chargeable upon the property which she so held ; and it has long 
 been settled that the giving of a promissory note by a married woman 
 without any mention of her separate estate is sufficient to make her 
 separate estate liable. 
 
 But it was found necessary, in order to give more complete protection 
 from the influence of her husband, to allow of such a modification of the 
 separate estate as should deprive her of the jus disponendi and of charging 
 her income with debts during the husband's lifetime. It has accordingly 
 been established that where a gift is made to a married woman for her 
 sole and separate use without power of anticipation she is disabled from 
 charging it with debts. Equity, which creates the separate estate for her 
 benefit, carries out the declared purpose of the gift, and holds that where 
 such a restriction is imposed she shall have no dominion over the income 
 till the payments actually become due — Pybiis v. Smith'. It follows that 
 the promissory note was nudum pactum when it was made as well in 
 Equity as at Common Law. To hold it binding now that she has become 
 discovert would be to allow her to anticipate her income and thus entirely 
 to overthrow the whole protection which is given to married women by 
 Courts of Equity — Re Sykes' Trusts'. My judgment is therefore for this 
 defendant. 
 
 I may add that as there are no trustees, if there had not been the re- 
 striction adverted to I should have lield that the separate estate might 
 have been reached by process in this action. 
 
 But though entitled to judgment the defendant is not, in my opinion, 
 entitled to any costs. Had her statement of defence candidly stated the 
 fact that she had separate property and set out the devise under which she 
 acquired it, and so enabled the plaintiff to trace out the will, I should have 
 awarded her at least some portion of costs, but she adopted a style of 
 
 ' 1 Ves. jun. 48. - 3 Bro. C. C. 339; ante p. 451. ^ 2 Jo. & H. 419.
 
 SECT. IV] BUTLEE V. HUTLER. 459 
 
 jileading which I catmot but strongly disapjsi'ove of and has thereby put 
 the plaintiff to the needless expense of administering interrogatories in 
 order to extract the truth, which ought to have been stated in her answer. 
 On this account, and considering that she defended jointly witli iier 
 mother, against wiiom the verdict stand.s, and that she had no witnesses, 
 I direct judgment to be entered for her without costs. 
 
 Judgment accordingly. 
 
 BUTLER V. BUTLER. 
 In thk High Court of Justice, February 28, 1885. 
 
 [Reported in Law Reports, li Queen's Bench Division, 831.] 
 
 Action by husband against his wife to recover 18i8^. out of her 
 separate estate, for money paid on her belialf. 
 
 Defence (amongst others), that in the circumstance* the defendant was 
 not legally liable. Joinder of issue. 
 
 Feb. 26. The case was tried before Wills, J., and a common juiy, 
 at the Royal Courts of Justice, when it appeared that the defendant before 
 lier marriage carried on business as a provision dealer, and on the 23rd of 
 January, 1883, the plaintiff" at her request, paid 701. I8s. for provisions 
 supplied to ])er and 3il. 1 2s. for repairs to the house where she carried on 
 business. On the 7th of April, 1883, the plaintiff and the defendant were 
 married, and afterwards lived together, but she continued to carry on 
 business at lier former place of business. The plaintiff made other pay- 
 ments for the defendant at her request after the marriage in respect 
 of moneys due fi'om her before the marriage. In some cases the request 
 had been before, and in others it was after the marriage. With regard to 
 the residue of the amount claimed, it was paid or advanced by the plaintifl' 
 after the marriage. Part was paid to the wife at lier request, to be spent 
 upon building speculations of her own (after the marriage), and tlie residue 
 was paid to different creditors of the wife at her request, and upon her 
 promise to repay tlie money out of her separate estate. 
 
 On the 2nd of August, 1883, the defendant signed an instrument in 
 writing charging her separate estate with part of these advances, and she 
 also rendered an account, giving her husband credit for 1300/. 
 
 It was agreed that the question whether, upon these facts, the defend- 
 ant was legally liable, should be tirst considered. 
 
 Kemp, Q.C., and Henri/ Kisch, for the plaintiff. The plaintiff's claims 
 are of three kinds. First, in respect of payment before marriage for the 
 wife's debts contracted before marriage ; second, in respect of payments
 
 460 BUTLER V. BUTLER. [CHAP. IV 
 
 after marriage in respect of debts contracted before marriage ; and third, 
 in respect of payments after marriage in respect of debts contracted by her 
 after marriage. With regard to all three classes the effect of the Married 
 Women's Property Act 1882 (45 & 46 Vict. c. 75), s. 1, sub-ss. 2, 3, 4, ss. 
 12 and 13, is to charge a married woman's separate estate not only as 
 regards contracts with third parties, but also as between her and her 
 husband. By s. 1, sub-s. 2, a married woman may make herself liable in 
 respect of her separate property on " any " contract, and to be sued in eon- 
 tract " in all respects as if she were a feme sole," and her husband 
 need not be joined with her as plaiiitifl' or defendant. The effect of this 
 sub-section is to destroy the Common Law doctrine of conjugal unity, 
 which was all tliat prevented the husband from suing his wife in a court 
 of law". Sub-sect. 3, makes any contract by a married woman, whether in 
 
 ' " The common law of tliis country, as to the disabilities of married women, was 
 not (as I conceive) founded on any presumption against the spontaneity or freedom of 
 acts done by the wife when under marital control ; nor was it subject to exception 
 whenever there might be circumstances sufficient to repel such a presumption. The 
 principle of the disability of coverture was that stated by Littleton (sect. 168) : "A 
 man and his wife are but one person in the law,'' which is the reason why "a man 
 cannot grant or give his tenements to his wife during the coverture " ; and (as Lord 
 Coke says, in his comment on the same place) " she is disabled to contract with any, 
 without the consent of her husband ; omnia qua sunt uxoris simt ipsius viri," As to 
 her personal property in possession the husband had absolute power without ajiy con- 
 currence on her part, and also as to the administration and usufruct of her real estate. 
 By personal contracts either with him, or with any other person, she could in no way 
 bind herself. Equitv, in later times, through the medium of trusts, enabled her to 
 acquire separate estate, and to deal with such separate estate as if she had been a feme 
 sole, except when restrained from anticipation by the terms of the trust ; in which 
 case she continued under disability as to the corpus and future income of such 
 property, though the jus mariti was excluded ; and by a statute recently passed this 
 doctrine of separate estate has been very largely extended. 
 
 Although a maiTied woman could not contract or convey property (not separate) 
 except so far as by common or statute law she was enabled to join with her husband 
 in doing so, she might always, when her interest required it, sue and be sued, jointly 
 with her husband, or (in equity) apart from her husband by a next friend. In respect 
 of all interests which she had in the subject-matter of any such suit, she was bound as 
 much as if she had been under no disability, by the powers of the Courts, and by the 
 rules and principles of law and equity administered bj' them. Real estate of which 
 she or her husband in her right might be in possession could be recovered against her 
 as well as against her husband. Her conscience, as weU as that of her husband, might 
 be affected bj' personal frauds, so as to enable the Courts to adjudge what otherwise 
 would have been hers to the defrauded party. If property were given to her on an 
 express or implied condition, she might accept and sue for it, but she could not, any 
 more than a person under no disability, at once accept the gift and reject the condition. 
 Unless she had been held under such circumstances to be capable of election the gift 
 must necessarily have faUed ; which Courts of Equity thought neither necessary nor 
 reasonable. It was, therefore, a just corollary from her right to sue, and her habihty 
 to be sued, in such a case, that she might elect, and be bound by her election, unless 
 the nature of her interest in any property to be relinquished created some obstacle. 
 Courts of equity did not, in such cases, proceed upon the principle of ascribing to a 
 married woman capacity to bind herself or her property (not separate) by contract, for
 
 SECT. IV] BUTLER V. BUTLER. 4G1 
 
 writing or not, a contract with reference to her separate property. By 
 s. 12 every married woman has against her husband the same civil 
 remedies for tlie protection of lier separate property as if she were a feme 
 sole, and it must be taken that the husband's rights as against her are 
 reciprocal. Sect. 13 enacts that a woman after marriage is to remain 
 liable for debts contracted before marriage, and as between lierself and her 
 husband, "unless there be any contract between them to the contrary," 
 her separate property is to be primarily liable. Sect. 14 makes the 
 husband liable as before for such debts to the extent of property of the 
 wife acquired by him upon the marriage, and the effect of the two sections 
 must be to enable the husband to recover from the wife out of her separate 
 estate money paid by him in discharge of ante-nuptial debts. Bursill v. 
 Tanner^ decides that since the Act judgment may be obtained against 
 a married woman generally, tliougli execution will be limited to her 
 separate estate, which goes to shew that the effect of the Act is to destroy 
 the Common Law doctrine as to the unity of husband and wife. In 
 Mander v. Harris', Cotton, L. J., assumes that the Act was intended to 
 alter the rights of husband and wife inter se. In In re Martin, Butterjield 
 V. Ilott", Bacon, V.-C, appears to recognise the right of a husband to sue 
 his wife since the Act. Further, the action must be decided according to 
 the rules of Equity, and it is well establislied that in Equity a wife may 
 enter into a contract for valuable consideration with her husband : Hewison 
 v. Negus*, per Romilly, M. R. ; Woodward v. Woodimrd^ is to the same 
 effect. 
 
 [They cited with reference to the liability of the wife's estate for pay- 
 ments after marriage in respect of debts before and after marriage : 
 Vaiisittart v. Vaiisittart" ; Teasdale v. Braithwaite^ ; In re Foster d; Lister'; 
 Xicol V. Jones', and with reference to the construction of the Act, 
 Montague Lush on Husband and Wife, pp. 165, 395.] 
 
 Rose-Innes, for the defendant. First, the Act was intended, as were 
 the previous Married Women's Property Acts, to protect the wife in the 
 enjoyment of her separate property. It was never intended to give the 
 husband fresh remedies against his wife which he did not possess before 
 
 this special purpose ; she could not so bind any separate estate as to which she was at 
 the time restrained from anticipation. The late Master of the Rolls, in Smith v. Lucas, 
 18 Ch. D. 531, also held that she could not, by any election, bind beforehand her after- 
 acquired separate estate (though given to her without restraint on anticipation), which 
 she certainly might have done if she had been supposed to have for that purpose the 
 same capacity to contract which she would have had if a feme sole. In Stanley v. 
 Stanley 7 Ch. D. 589, the Court of Chancery refused to hold a married woman 
 estopped even by her own participation in a gross fraud, by which an innocent pur- 
 chaser was led to believe that she was not restrained from anticipation, when she was, 
 in fact, so restrained." Per Earl of Sclborne, Caliill v. Caliill, 8 App. Cas. 42,5. Ed. 
 
 1 13 Q. B. D. 691. 2 27 Ch. D. at p. 170. ^ W. N. 1884, 164. 
 
 * 16 Beav. 598. 5 3 De G. J. & S. 672. « 4 K. & J. 62. 
 
 ' 5 Ch. D. 6.S0. 8 6 Ch. D. 87. » Law Rep. 3 Eq. 709.
 
 4G2 BUTLER v. BUTLER. [CHAP. IV 
 
 the Act. It was only intendcjd to aH'ect the wife's liability with regard to 
 strangers. Cahill v. Cahill ' sliews that the wife, as regards the power to 
 contract with her husband, is not in tlie position of a feme sole. 
 
 Cur. adv. vuU. 
 
 Feb. 28. Wills, J., delivered judgment as follows. This is an action 
 by a husband against his wife seeking to have it declared that, first, 
 moneys lent by him to her before marriage, secondly, moneys lent by him 
 to her after marriage are a charge upon her separate estate, and asking for 
 the necessary inquiries in order to give effect to his claim. 
 
 Tlie marriage took place on the 7th of April, 1883. The wife was 
 carrying on a business of her own as a provision dealer. They lived away 
 from the place of business, and she carried on the business after marriage 
 apart from her husband. Before the marriage the plaintiff had, at the 
 request of the defendant, paid sums of money for her to pay debts she 
 owed in business. After marriage he paid other sums at her request, and 
 he lent her other sums, as to some of which at all events there is evidence 
 that she proposed to him to charge them upon her separate estate. 
 
 It is objected that no action will lie. The moneys advanced before 
 marriage constituted it is admitted ante-nuptial debts. To them and to 
 the loans and payments upon request made after marriage very different 
 considerations apply. I will consider first the case of the loans and pay- 
 ments upon request made after marriage. 
 
 Now I take it to be clear that in the ordinary sense in which we 
 understand a mere personal contract, neither at law nor in equity can 
 tliere be any contract between husband and wife. I take it to be equally 
 clear that this general rule is subject to the qualification that with respect 
 to the wife's separate estate free from restraint upon anticipation she is 
 competent to contract and to contract with her own husband : Heunson v. 
 Negus'; Vansittart v. Vansittart'. It is difficult to see any difference in 
 principle between cases in which mutual stipulations in post-nuptial settle- 
 ments have been enforced on the ground of such capacity to contract, or in 
 which such settlements have been upheld against creditors as not being 
 voluntary, and a case like the present in which a contract of loan is sought 
 to be upheld. Woodward v. Woodward* is a very distinct authority to 
 this eflect : "This Court," says Lord Westbury, "has established the 
 independent personality of a feme convert with respect to property settled 
 to her separate use. It is a remarkable instance of legislation by judicial 
 decision, whereby the old common law has been entirely abrogated and the 
 power of the wife to contract ■with her husband has been established. It 
 is quite clear that if money, part of the income of her separate estate, be 
 handed over by her to her husband, upon a contract of loan, the wife may 
 sue her husband upon that contract \ 
 
 ' 8 App. Cas. 420. = 16 Beav. 504, 598. ' 4 K. & J. 62, 70. 
 
 •* 3 De G. J. & S. 672. ^ Ibid, at p. 674.
 
 SECT. IV] BUTLER ('. liL'TI.ER. 40.1 
 
 If the capacity to contract exist the power and the remedy must alike 
 be mutual, and the husband must be able to sue the wife as well as 
 the wife the husband, and indeed in many cases undistinguishable in 
 principle from this the husband has sued in Courts of Equity. As to some 
 of these claims the wife is alleged to have expressly charged or promised to 
 charge her separate estate ; as to others, she merely appears to have 
 borrowed them or requested her husband to pay them under such circum- 
 stances (it is to be assumed for the purposes of my present decision) as but 
 for the relation of husband and wife would have raised a legal obligation 
 to repay the money advanced liy the husband. But this distinction has, I 
 think, no effect upon the rights of the parties, inasmuch as by s. 1, sub-s. 3, 
 of the Married Women's Property Act, 1882, "every contract entered into 
 by a married woman shall be deemed to be a contract entered into by 
 her with respect to and to bind her separate property unless the contrary 
 be shewn." 
 
 As to the post-nuptial loans and advances by the husband therefore I 
 think the plaintiff has a right of action. 
 
 To the ante-nuptial advances very different considerations apply. 
 There is no doubt that prior to the Married Women's Property Act, 1882, 
 no such action could have been maintained, but it is alleged that it will 
 now lie under the provisions of that Act. It is necessary therefore care- 
 fully to examine its provisions bearing upon this question. 
 
 By s. 12 it is enacted that "Every woman whether married before or 
 after this Act, shall have in her own name against all persons whomsoever, 
 including her husband, the same civil remedies for the protection and 
 security of her own separate property, as if such property belonged to her 
 as a feme sole." This enactment, however, is silent as to any correlative 
 rights of the husband, and has no application to a claim by the husband 
 upon the wife's separate estate. It is urged that the Act must have 
 meant to give the husband correlative rights in respect of the separate 
 property of the wife. I answer, I do not see why. I take the Act to 
 mean exactly what it says — no more and no less. It is said that it 
 destroys the doctrine of the common law by which there was what has been 
 called a unity of person between husband and wife. Again I answer, 
 I do not see why. It confers in certain specified cases new powers upon 
 the wife, and in others new powers upon the husband, and gives them 
 in certain specified cases new remedies against one another. But I see no 
 reason for supposing that the Act does anything more than it professes to 
 do, or either abrogates or infringes upon any existing principles or rules of 
 law in cases to which its provisions do not apply. I pass therefore to 
 s. 13, which deals with the wife's responsibility in respect of ante-nuptial 
 liabilities whether arising out of contracts or tort. It is provided that " a 
 woman after her mariiage shall continue to be liable in respect and to the 
 extent of her separate property for all debts contracted, and all contracts 
 entered into or wrongs committed by her before her marriage, and
 
 464 BUTLEU ('. BUTLER. [CHAP. VI 
 
 she may be sued for any such debt and for any liability in damages 
 or otlierwise under any such contract, or iu respect of any such wrong ; 
 and all sums recovered against her in respect thereof, or for any costs 
 relating thereto, shall be payable out of her separate property ; and, as 
 between her and lier husband, unless there be any contract between them 
 to the contrary, her separate property shall be deemed to be primarily 
 liable for all such debts, contracts, or wrongs, and for all damages or costs 
 recovered in respect thereof." 
 
 The words of the earlier part of the section are large enough to cover 
 the present contention of the plaintiff, but it is very material to observe 
 that tliey apply equally to torts as well as to contracts, yet is expressly 
 provided by s. 12, that with the exception of the very special case to 
 which s. 10 refers, no husband or wife shall be entitled to sue the other 
 for a tort. If s. 13 had been intended to cover cases of claims by a 
 husband as well as those by a stranger against the wife it would scarcely 
 have failed to have some reference to the enactment immediately preceding 
 that no husband should be able to sue a wife for a tort. The provision as 
 the primary liability between husband and wife is apparently intended to 
 apply to the whole of the area covered by the preceding parts of the 
 section, and yet it is insensible as applied to the case of an action for 
 claims of the husband against the wife's separate estate. A proviso 
 follows which does not, I think, throw further light upon the question, 
 and is only worth a passing notice as a curious specimen of drafting. In 
 an Act repealing two other Acts, and professmg in terms to consolidate 
 and amend their provisions, they are referred to in such a manner that it 
 would be impossible to understand the present enactment witliout an 
 examination of the whole of the provisions repealed. 
 
 Sects. 14 and 15 contain important provisions concerning the husband's 
 responsibility for his wife's ante-nuptial liabOities whether of contract or 
 tort. They are of course applicable only to actions by strangers. They 
 are obviously intended to be supplementary to the provisions of s. 13, and 
 they confirm, in my opinion, the view that in no part of this group of 
 sections was it intended to deal with ante-nuptial claims either of husband 
 or wife against one another. 
 
 Sect. 17, which provides a summary remedy in case of certain classes of 
 disputes as to property between husband and wife, has no application to 
 or bearing upon the present question. 
 
 There remain only to be considered the provisions of s. 1, sub-s. 2, 
 whereby it is enacted that a married woman shall be capable of suing and 
 being sued either in contract or in tort or othei'wise in aU respects as if 
 she were a feme sole. This provision, however, affects mode of procedure. 
 The section dispenses in terms with the necessity of joining the husband as 
 plaintiff or defendant, and I am of opinion that, except as to a contract 
 made by a woman whilst under coverture, it was not intended to enlarge any 
 riglits or liabilities of either husband or wife apart from those which may
 
 SECT. IV] UUTLEll V. BUTLEK. 465 
 
 necessarily tlow from the fact tliat the liusbancl need no longer be Joincil 
 as a matter of procedure, which will have principally to do with liabilities 
 to costs. 
 
 I am of opinion, therefoi'c, that in respect of the ante-nuptial liabilities 
 of wife to the husband the action cannot be maintained. Payments made 
 by him after marriage upon requests antecedent to marriage are liabilities 
 arising after marriage and fall under the first head of claim which I have 
 discussed. 
 
 Judgment accordingly^. 
 
 1 In tlic case of In re SItakespcar, Deakin v. Lakiii, 30 Ch. D. 16!), where the trusts 
 of a jjolicy of insurance on the life of the husband were for the trustees to receive and 
 invest the monej' aud to pay the income to the wife and her assigns durinjj her life in 
 case she should survive her husband, and for her sole and separate use during her life 
 in case she should marry again ; and where the wife had joiued in a deed which pur- 
 ported to assign all her interest in the trust propeiiy, Mr Justice Pearson said : " At 
 the present moment the wife has not any separate estate in the policy ; she has only a 
 contingent reversionary interest in it to her separate use. If she should survive her 
 husband, she will have no separate estate in the proceeds of the policy unless and until 
 she marries again. It is said that by virtue of sect. 1, sub-sect. 4, of the Married 
 Women's Property Act, 1882, she can now enter into a binding contract to part with 
 that future contingent separate estate ; that, though at the present moment she has no 
 separate property in the fund, her contract viill bind that future separate interest in case 
 it should hereafter arise. In my opinion, according to the true construction of the 
 Act, the contract which is to bind separate property must be entered into at a time 
 when the married woman has existing separate property. If she has such property her 
 contract will bind it. If she afterwards commits a breach of the contract, and proceed- 
 ings are taken against her for the breach of contract, any separate property which she 
 has acquired since the date of the contract, and which she has at the time when judg- 
 ment is recovered against her, will be liable for the breach of contract. But the Act 
 does not enable her, by means of a contract entered into at a time when she has no 
 existing separate property, to bind any possible contingent separate property." Ed. 
 
 30
 
 CHAPTER V. 
 
 REALITY OF CONSENT. 
 
 SECTION I. 
 
 MISTAKE. 
 
 FOSTER V. RIACKIKNON. 
 
 In the Common Pleas, July 5, 1869. 
 
 IReported in Laic Reports, 4 Common Pleas, 704.] 
 
 Action by indorsee against indorser on a bill of exchange for 3000/. 
 dI■a^^^l on the 6th of November, 1867, liy one Cooper upon and accepted 
 by one Callow, payable six months after date, and indorsed successively by 
 Cooper, the defendant, J. P. Parker, T. A. Pooley & Co., and A. G. Pooley, 
 to the plaintiff, who became the holder for value (having taken it in part- 
 payment of a debt due to liim from A. G. Pooley) before it became due, 
 and without notice of any fraud. 
 
 The pleas traversed the several indorsements, and alleged that the 
 defendant's indorsement was obtained from liim by fraud. 
 
 The cause was tried before BoWll, C. J., at the last spring assizes at 
 Guildford. The defendant, who was a gentleman far advanced in years, 
 swore that the indorsement was not in his handwriting, and that he had 
 never accepted nor indorsed a bill of exchange ; but there was exadence 
 tliat the signature was his ; and Callow, who was called as a witness for 
 the plaintiff, stated that he saw the defendant write the indorsement 
 under the following circumstances : — Callow had been secretary to a 
 company engaged in the formation of a railway at Sandgate, in Kent, in 
 which the defendant (who had property in the neighbourhood) was in- 
 terested ; and the defendant had some time previously, at Callow's request, 
 signed a guarantee for 3000/., in order to enable the company to obtain an 
 advance of money from their bankers. Callow took the bill in question 
 (which was drawn and indorsed by Cooper) to the defendant^ and asked 
 him to put his name on it, telling him it was a guarantee ; whereupon the 
 defendant, in the belief that he was signing a guarantee similar to that 
 which he had before given (and out of which no liability had resulted to 
 him), put his signature on the back of the bill immediately after that of
 
 SECT. l] FOSTER V. MACKINNON. 467 
 
 Cooper. Callow only showed tlie defendant the back of the paper : it 
 was, liowever, in the ordinary shape of a bill of exchange, and bore a 
 stamp, the impress of which was visible tlirough the paper. 
 
 The Lord Chief Justice told the jury that, if tiie indorsement was not 
 the signature of the defendant, or if, being his signature, it was obtained 
 upon a fraudulent representation that it was a guarantee, and the defend- 
 ant signed it without knowing that it was a bill, and under the belief that 
 it was a guarantee, and if the defendant was not guilty of any negligence 
 in so signing the paper, lie was entitled to the verdict. 
 
 The jury returned a verdict for the defendant. 
 
 Sir J. D. Colerulge, S. G., in Easter Term last, obtained a rule nisi for 
 a new trial, on the grounds of misdirection and that the verdict was 
 against e\"idence. 
 
 Ballantine, Serjt., Broiim, Q.C., and Archibald, shewed cause. Two 
 questions arise here — 1. Whether there was any negligence on the part of 
 the defendant in signing the document as he did. 2. Whether, assuming 
 Callow's evidence to be true, the defendant can be responsible upon an 
 indorsement so fraudulently obtained. In considering the first of these 
 questions, regard must be had to the age and condition of the party. 
 What would be negligence in a merchant or a banker would not neces- 
 saiily be negligence on the part of a gentleman of great age and impaired 
 physical powers. Negligence must in all cases be a relative term : Lynch 
 v. Nurdin^. Then, as to the second question. It is essential to every 
 contract that there be volition. A man cannot be said to contract when 
 he signs a paper upon a representation and under a belief that he is 
 signing something different from that wliich it turns out to be ; to make a 
 valid and binding contract, the mind must go with the act. This arises 
 upon the traverse of the indorsement. Upon the facts proved, the 
 defendant cannot be said to have indorsed the bill at all. The rule which 
 is applicable to deeds ^ is equally applicable to bonds and to bills of ex- 
 
 1 1 Q. B. 29. 
 
 ^ In Shepparil's Touchstone, p. .56, it is said: "The third thing required in every 
 well made deed is, that if the party that is to seal it be a blind or au illiterate man, 
 and desire to hear it read, that it be so ; for if such a man be to seal a deed, and he 
 desire to hear it, or to hear the contents of it read or declared to him first, and it be 
 not done, and he afterwards seal and deliver it, this is no good deed. So, if upon or 
 without any such request made by him that is to seal and deliver it, the party himself 
 to whom it is made, or a stranger, shall read the deed, or declare the contents thereof, 
 falsely and otherwise than in truth it is, the deed will be void, at least for so much as 
 is so misread or misdeclared. But if the party himself that is to seal and deliver it, 
 before the sealing and delivery thereof, cause another that is a stranger covinously to 
 read it, or to declare the contents thereof falsely to him, and otherwise than it is, of 
 purpose to make the deed void, this will not hurt the deed. So if the party that is to 
 seal the deed, can read himself and doth not, or being an illiterate or a blind man, doth 
 not require to hear the deed read, or the contents thereof declared, in these cases albeit 
 the deed be contrary to his mind, yet it is good and unavoidable." Ed. 
 
 30—2
 
 468 FOSTER V. MACKINNON. [CHAP. V 
 
 change: Com. Dig. Fail (B. 2); Thorough^oofPs C'ase\ and note R. refer- 
 ring to Keilwey, 70, b., pi. 6 ; Swan v. North British Australasian Com- 
 fany'; Polhill v. Walter^. Where a man puts liis name as acceptor or 
 indorser on a blank stamp, he becomes responsible, if the bill is afterwards 
 (illcd up and gets into the liands of a bona fide holder for value, to 
 tlie full amount which the stamp will cover: Russel v. Langstaffe*; 
 Montague v. Perkins^; Byles on Bills, 9tli ed. 181 ; but in such case he 
 intends to become a party to the bill. All the cases in which one who has 
 been defrauded has been held liable upon the bill or note are explainable 
 on the ground of agency : Byles on Bills, 9th ed. 131. Yoking v. Grote" 
 may be sustained on that ground'. But the fact of agency must be first 
 established : Awde v. Dixon'; Kingsford v. Merry^. In Ingham v. Prim- 
 rose '°, the defendant had once made a complete bill, and the ground of the 
 decision was that he had negligently omitted to cancel or destroy it 
 effectually. 
 
 Sir J. D. Coleridge, S. G., Sir G. Ilonynxan, Q.C., and Talfourd Salter, 
 in support of the rule. The fact that the defendant's indorsement on the 
 biU was obtained by a fraudulent representation that he was signing 
 something else, is no answer to the claim of a bona fide holder for value, 
 without notice of the fraud. No doubt, as a general rule, fraud vitiates 
 all contracts. But a bill of exchange is not in the ordinary sense of the 
 word a contract at all. The law-merchant imposes certain obligations on 
 parties who put their names on bills of exchange, — obligations altogether 
 apart from the ordinary obligations arising out of other contracts. Bills 
 of exchange now form an important part of the currency of the country. 
 No matter how a bill or note may be tainted with fraud, or even if it has 
 been obtained by duress or by felony, that is no answer to an action at the 
 suit of a bona fide holder for value : Bayley on Bills, 472, 473, 534 ; Chitty 
 on Bills, 10th ed. 50, .53, 178 ; Byles on Bills, 8th ed. 57; Duncan v. Scott''; 
 Marston v. Allen''; Harvey v. Ihmers'^; Parsons on Bills, ed. 1865, pp. 
 109 — 115, citing, amongst other cases, Putnam v. Sullivan'*, where 
 Parsons, C. J." says : "The counsel for the defendants agree that generally 
 an indorsement obtained by fraud shall liold the indorsers according to 
 the terms of it ; but they make a distinction between the cases where the 
 indorser through fraudulent pretences has been induced to indorse the 
 note he is called on to pay, and where he never intended to indorse a note 
 of tliat description, but a diflerent note and for a diflerent purpose. 
 Perhaps there may be cases in which the distinction ought to prevail ; as, 
 
 1 2 Co. Rep. 9, b. =2 H. & C. 175. ^ 3 B. & Ad. 114. 
 
 * 2 Doug. 514. 5 22 L. J. (C. P.) 187. « 4 Bing. 253 ; 12 Mo. 484. 
 
 ' See the observations upon that case of Parke, B., in Eobarts v. Tucker (16 Q. B. 
 560); of Williams, J., in Ex parte Swan (7 C. B. (n.s.) 445); and of Blackburn, J., in 
 Gum V. Tyrie (4 B. & S. 680, 713). 
 
 8 6 Ex. 86'J. a 11 Ex. 677; in error, 1 H. & N. 503. 
 
 '" 7 C. B. (n.s.) 82; 28 L. J. (C. P.) 294. " 1 Camp. 100. 12 g M. & W. 494. 
 
 15 6 Ex. 656. i-i 4 Massachusetts, Kep. 45. " aj p. 54.
 
 SECT. l] FOSTER V. MACKINNON. 4G9 
 
 wliere a blind man liacl a note falsely and fraudulently read to him, and lie 
 indorsed it, supposing it to be the note read to him. But we are satisfied 
 that an indorser cannot avail himself of tliis distinction but in cases where 
 he is not chargeable with any laches or neglect or misplaced confidence in 
 others. In Jiex v. ffales', the prisoner had got from a memlier of parlia- 
 ment named Gibson a blank frank, which he subsequently, by writing 
 over the signature and altering the word " free " into " for " and adding 
 " myself and partners," turned into a promissory note for 2G00^. ; and, 
 tliougli the most eminent counsel of the day were retained to defend him, 
 it did not occur to any of them that the then necessary allegation in the 
 indictment of the intent to defraud Gibson failed in proof, which it would 
 have done if the argument urged here is well founded, viz. that Gibson 
 was not liable on the note, and therefore could not be defrauded. So, in 
 Rexv. Eeveti\ A. by false representations induced B. to sign his name to a 
 blank stamped paper, which A. afterwards secretly filled up as a promis- 
 sory note for 100^., and induced C. to advance him 100^. upon it. A. was 
 indicted for defrauding C. ; and it was held that C had his remedy against 
 B. on the note, and that the fraud therefore not being upon C. but upon 
 B., the indictment was not sustained by the evidence. Wherever there is 
 consideration, fraud may be disregarded. If a stolen bill gets into circula- 
 tion, the acceptor is liable at the suit of a bona fide holder for value. 
 That is asserted in Ingham v. Primrose^. Awde v. Dixon' is like 
 Stagg v. Elliott''. This was not a case of forgery : it was a mere fraudulent 
 procurement of the defendant's signature to a genuine and a complete bill. 
 Thoroughgood's Case' is peculiar, and not very intelligible ; and in the case 
 cited from Keilwey, 70, b., the deed was fraudulently read by the grantee 
 himself. 
 
 [Brett, J. Nance v. Lary'' cited in Parsons on Bills, 114, seems to 
 be very much to the purpose. In that case, the defendant and one 
 Langford being about to execute a bond in blank, the latter produced 
 a sheet of paper, upon which the defendant signed his name ; whereupon • 
 Langford suggested that the signature was so far from the bottom of the 
 paper that there might not be room for the bond to be written above it, 
 and produced another sheet for the defendant to sign so as to leave 
 sufficient room for the intended bond. Langford, with apparent careless- 
 ness, slipped the first sheet aside, and signed the other with the defendant, 
 who carried it to the clerk of the court to be filled up, leaving the former 
 with Langford, under the impression that it had been or would be 
 destroyed. Subsequently, Langford caused the note upon which the 
 present suit was brought to be written over the blank signature of the ' 
 defendant retained by him, and negotiated it to the plaintiff'. Collier, 
 C. J., said: "The making of the note by Langford was not a mere fraud 
 
 1 17 How. St. Tr. 161. » Byles on Bills, 8th ed. 124. 
 
 3 7 C. B. (n.s.) 82, 85; 28 L. J. (C. P.) 294. * 6 Ex. 8G!). 
 
 5 12 C. B. (N.s.) 373. ''• 2 Go. Rep. <l, b. ' .5 Alalianiii Rep. :i70.
 
 470 FOSTER V. MACKINNON. [CHAP. V 
 
 upon the defendant ; it was sometliing more. It was quite as mucli a 
 forgery as if lie had found the blank, or purloined it from the defendant's 
 possession. If a recovery were allowed upon such a state of facts, then 
 every one who indulges in the idle habit of writing his name for mere 
 pastime, or leaves sufficient space between a letter and his subscription, 
 might be made a bankrupt by having promises to pay money written over 
 his signature. Such a decision would be alarming to the community, has 
 no warrant in law, and cannot receive our sanction.] 
 
 In that case the defendant never intended to sign the instrument 
 at all. Byles, J., in his judgment in Swan v. Worth British Australasian 
 Company', in the Exchequer Chamber, says: "The object of the law- 
 merchant as to bills and notes made or become payable to bearer is, to 
 secure their circulation as money ; therefore honest acquisition confers 
 title. To this despotic but necessary principle, the ordinary rules of the 
 common law are made to bend. The mis-application of a genuine signature 
 written across a slip of stamped paper (which transaction, being a forgery, 
 would in ordinary cases convey no title), may give a good title to any 
 sum fraudulently inscribed, within the limits of the stamp, and in America, 
 where there are no stamp-laws, to any sum whatever. Negligence in the 
 maker of an instrument payable to bearer makes no difference in his 
 lialjility to an honest holder for value : the instrument may be lost by the 
 maker without his negligence, or stolen from him, still he must pay." 
 
 [Byles, J. If that be right, it can only be with reference to the case 
 of a complete instrument ; it can hardly be applicable to a case where 
 a man's signature has been obtained by a fraudulent representation to a 
 document which he never intended to sign.] 
 
 Then, the verdict was clearly against the weight of evidence upon the 
 question of negligence. Can it be said that it was any other tlian gross 
 negligence on the part of the defendant to put his name upon the back of 
 a document such as that described, without even looking at the face of it. 
 If any one is to suffer from his misplaced confidence in Callow, it surely 
 must be the defendant himself. 
 
 Cur. adv. vult. 
 
 July 5. The judgment of the Court (Bovill, C. J., Byles, Keating, and 
 Montague Smith, JJ.) was delivered by 
 
 Byles, J. This was an action by the plaintiff' as indorsee of a bill of 
 exchange for 3000?., against the defendant, as indorser. The defendant by 
 one of his pleas traversed the indorsement, and )jy another alleged that 
 the defendant's indorsement was obtained from him by fraud. The 
 plaintiff" was a holder for value before maturity, and witliout notice of any 
 fraud. 
 
 There was contradictory evidence as to whether the indorsement was 
 the defendant's signature at all; but, according to the e\'idence of one 
 
 ' 2 H. & C. at p. 184.
 
 SECT. l] FOSTER V. MACKINNON. 471 
 
 Callow, the acceptor of the bill, who w.as called as a witness for the 
 plaintiff, he, Callow, produced the bill to the defendant, .a gentleman 
 advanced in life, for him to put his signature on the back, after that 
 of one Cooper, who was payee of the bill and first indorser. Callow not 
 saying tliat it was a bill, and telling the defendant that the instrument 
 was a guarantee. The defendant did not see the face of the bill at all. 
 But the bill was of the usual shape, and bore a stamp, the impress of 
 wliieh stamp was visible at tlie Ijack of tlie bill. Tlie defendant signed his 
 name after Cooper's, he the defendant (as the witness stated) believing the 
 document to be a guarantee only. 
 
 The Lord Cliief Justice told the jury that, if the indorsement was not 
 the defendant's signature, or if, being his signature, it was obtained upon 
 a fraudulent representation that it was a guarantee, and the defendant 
 signed it without knowing that it was a bill, and under the belief that it 
 was a guarantee, and if the defendant was not guilty of any negligence in 
 so signing the paper, the defendant was entitled to tlie verdict. Tlie jury 
 found for the defendant. 
 
 A rule nisi was obtained for a new trial, first, on the ground of mis- 
 direction in tiie latter part of the summing-up, and secondly, on the 
 ground that the verdict was against the evidence. 
 
 As to the first branch of the rule, it seems to us that the question 
 arises on the traverse of the indorsement. The case presented by the 
 defendant is, that he never made the contract declared on ; that he never 
 saw the face of the bill ; tliat tlie purport of the contract was fraudulently 
 misdescribed to hiai ; that, when he signed one thing, he was told and 
 believed that he was signing another and an entirely difTerent thing ; and 
 that his mind never went with his act. 
 
 It seems plain, on principle and on authority, that, if a blind man, or a 
 man who cannot read, or who for some reason (not implying negligence) 
 forbears to read, has a written contract falsely read over to him, the 
 reader misreading to such a degree that the written contract is of a nature 
 altogether different from the contract pretended to be read from the paper 
 which the blind or illiterate man afterwards signs ; then, at least if there 
 be no negligence, the signature so obtained is of no force. And it is 
 invalid not merely on the ground of fraud, wliere fraud exists, but on the 
 ground that the mind of the signer did not accompany the signature ; in 
 other words, that he never intended to sign, and therefore in contem- 
 plation of law never did sign, the contract to wliicli his name is appended. 
 
 The authorities appear to us to support this view of the law. In 
 Thoruughgood's Case ' it was held that, if an illiterate man have a deed 
 falsely read over to him, and he then seals and delivers the parchment, 
 that parchment is nevertheless not his deed. In a note to Thoroiujhgood's 
 Case', in Fraser's edition of Coke's Reports, it is suggested that the 
 doctrine is not confined to the condition of an illiterate grantor ; and a 
 
 I 2 Co. Rep. 0, b.
 
 472 FOSTER V. MACKINNON. [CHAP. V 
 
 case in Keilwey's Reports' is cited in support of this observation. On 
 reference to that case, it appears that one of the judges did there observe 
 that it made no difference whether the grantor were lettered or unlettered. 
 That, however, was a case where the grantee himself was the defrauding 
 party. But the position that, if a grantor or covenantor be deceived or 
 misled as to the actual contents of the deed, the deed does not bind him, is 
 supported by many authorities : see Com. Dig. Fait (B. 2) ; and is recog- 
 nised by Bay ley, B., and the Court of Exchequer, in the case of Edwards 
 V. Brown^. Accordingly, it has recently been decided in the Exchequer 
 Cliamber, that, if a deed be delivered, and a blank left therein be after- 
 wards improperly tilled up (at least if that be done without the grantor's 
 negligence), it is not the deed of the grantor : Swan v. North British 
 Australasian Land Company^. 
 
 These cases apply to deeds ; but the principle is equally applicable to 
 otlier written contracts. Nevertheless, this principle, when applied to 
 negotiable instruments, must be and is limited in its application. Tliese 
 instruments are not only assignable, but tliey form part of the currency of 
 the country. A qualification of the general rule is necessary to protect 
 innocent transferees for value. If, therefore, a man write his name across 
 the back of a blank bill-stamp, and part with it, and the paper is 
 afterwards improperly filled up, he is liable as indorser. If he write 
 it across the face of the bill, he is liable as acceptor, when the instrument 
 has once passed into the hands of an innocent indorsee for value before 
 maturity, and liable to the extent of any sum which the stamp will cover. 
 
 In these cases, however, the party signing knows what he is doing : the 
 indorser intended to indorse, and the acceptor intended to accept, a bill of 
 exchange to be thereafter filled up, leaving the amount, the date, the 
 maturity, and the other parties to the bill undetermined. 
 
 But, in the case now under consideration, the defendant, according to 
 the evidence, if believed, and the finding of the jury, never intended 
 to indorse a bill of exchange at all, liut intended to sign a contract 
 of an entirely different nature. It was not his design, and, if he 
 were guilty of no negligence, it was not even his fault that the 
 instrument he signed turned out to be a bill of exchange. It was as if he 
 had written his name on a sheet of paper for the purpose of franking a 
 letter, or in a lady's album, or on an order for admission to the Temple 
 Church, or on the fly-leaf of a book, and there had already been, without 
 his knowledge, a bill of exchange or a promissory note payable to order 
 inscribed on the other side of the paper. To make the case clearer, 
 suppose the bill or note on the other side of the paper in each of these 
 cases to be written at a time subsequent to the signature, then the 
 fraudulent misapplication of that genuine signature to a different purpose 
 would have been a counterfeit alteration of a writing with intent to 
 defraud, and would therefore have amounted to a forgery. In that case, 
 ' Keilw. 70, pi. fi. - 1 C. & J. 312. » 2 H. & C. 175.
 
 SECT. I] FOSTER V. MACKINNON. 473 
 
 tlie signer would not have been liound liy his signature, for two reasons, — 
 first, that he never in fact signed the writing declared on, — and, secondly, 
 that he never intended to sign any such contract. 
 
 In the present case, the first reason does not ajiplj-, but the second 
 reason does apply. The defendant never intended to sign that contract, or 
 any such contract. He never intended to put his name to any instrument 
 that then was or thereafter might become negotiable. He was deceived, 
 not merely as to the legal effect, but as to the actual contents of the instru- 
 ment. 
 
 We are not aware of any case in which the precise question now before 
 us has arisen on bills of exchange or promissory notes, or been judicially 
 discussed. In the case of Ingham v. Primrose', and the case of Nance v. 
 Lary ", both cited by the plaintiff, the facts were very different from those 
 of the case before us, and have but a remote bearing on the question. 
 But, in Putnam v. Sullivan, an American case, reported in 4 Mass. 45, 
 and cited in Parsons on Bills of Exchange, vol. I. p. Ill, n., a distinction 
 is taken by Chief Justice Parsons between a case where an indorser 
 intended to indorse such a note as he actually indorsed, being induced by 
 fraud to indorse it, and a case where he intended to indorse a different 
 note and for a different purpose. And the Court intimated an opinion 
 that, even in such a case as that, a distinction might prevail and protect 
 the indorsee. 
 
 The distinction in the case now under consideration is a much plainer 
 one ; for, on this branch of the rule, we are to assume tliat the indorser 
 never intended to indorse at all, but to sign a contract of an entirely 
 different nature. 
 
 For these reasons, we think the direction of the Lord Chief Justice was 
 right. 
 
 With respect, however, to the second branch of the rule, we are of 
 opinion that the case should undergo further investigation. We abstain 
 from giving our reasons for this part of our decision only lest they should 
 prejudice either party on a second inquiry. 
 
 The rule, therefore, will be made absolute for a new trial. 
 
 Rule absolute. 
 
 1 7 C. B. (n.s.) 83; 28 L. J. (G. P.) 29-1. 
 ^ 5 Alabama, 370, cited 1 Parsons on Bills, 11-1 n.
 
 4'74 CUNDY AND BEVINQTON V. LINDSAY -AND OTHERS. [CHAP. V 
 
 JAMES CUNDY AND T. BEVINGTON . . Appellants; 
 
 AND 
 THOMAS LINDSAY AND OTHERS . . . Respondents. 
 
 In the House op Lords, March 1 — 4, 1878. 
 
 [liejmrted in Latv Reports, 3 Appeal Cases, 459.] 
 
 Appeal from a decision of the Court of Appeal, wliich had reversed a 
 previous decision of the Queen's Bench. 
 
 In 1873, one Alfred Blenkarn hired a room at a corner liouse in Wood 
 Street, Cheapside — it had two side mndows opening into Wood Street, 
 but though the entrance was from Little Love Lane it was by him 
 constantly described as 37, Wood Street, Cheapside. His agreement for 
 this room was signed " Alfred Blenkarn." The now respondents, Messrs. 
 Lindsay & Co., were linen manufacturers, carrying on business at 
 Belfast. In the latter part of 1873, Blenkarn wrote to tlie plaintiffs on 
 the sulyect of a purchase from them of goods of their manufacture — cliicfly 
 cambric handkerchiefs. His letters were written as from " 37, Wood 
 Street, Cheapside," where he pretended to have a warehouse, but in fact 
 occupied only a room on the top floor, and that room, though looking into 
 Wood Street on one side, could only be reached from the entrance in 
 5, Little Love Lane. The name signed to these letters was always signed 
 witliout any initial as representing a Christian name, and was, besides, so 
 written as to appear " Blenkiron &, Co." There was a liighly respectable 
 firm of W. Blenkiron & Son, carrying on business in Wood Street — but at 
 123, Wood Street, and not at 37. Messrs. Lindsay, who knew tlie 
 respectability of Blenkiron & Son, though not the number of tlie house 
 where they carried on business, answered the letters, and sent the goods 
 addressed to "Messrs Blenkiron & Co., 37, Wood Street, Cheapside," 
 where they were taken in at once. Tlie invoices sent witli tlie goods were 
 always addressed in the same way. Blenkarn sold the goods, thus 
 fraudulently obtained from Messrs. Lindsay, to diiferent persons, and 
 among the rest he sold 250 dozen of cambric handkerchiefs to the Messrs. 
 Cundy, who were bona fide purchasers, and who resold them in the 
 ordinary way of their trade. Payment not being made, an action was 
 commenced in the Mayor's Court of London by Messrs. Lindsay, the 
 junior partner of which firm, Mr Thomson, made the ordinary afiidavit of 
 debt, as against Alfred Blenkarn, and therein named Alfred Blenkarn as 
 the debtor. Blenkarn's fraud was soon discovered, and he was prosecuted 
 at the Central Criminal Court, and convicted and sentenced. Messrs. 
 Lindsay then brought an action against Messrs. Cundy as for unlawful 
 conver.sion of the handkerchiefs. The cause was tried before Mr Justice 
 Blackburn, who left it to tlie jury to consider whether Alfred Blenkarn,
 
 SECT. l] CUNDY AND BEVINGTON V. LINDSAY AND OTHERS. 475 
 
 with a fraudulent intent to induce the plaintiffs to give him tlie credit 
 belonging to the good character of Blenkiron & Co., wrote the letter.s, and 
 by fraud induced the plaintifls to send the goods to 37, Wood Street — 
 were they the same goods as those bought by the defendants — and did the 
 plaintiffs by the affidavit of debt intend, as a matter of fact, to adopt 
 Alfred Blenkarn as their debtor. The first and second questions were 
 answered in the affirmative, and tlie third in the negative. A verdict was 
 taken for the defendants, with leave reserved to move to enter the verdict 
 for the plaintifTs. On motion accordingly, the Court, after argument, 
 ordered the rule for entering judgment for the plaintiffs to be discliarged, 
 and directed judgment to be entered for the defendants'. On appeal, this 
 decision was reversed and judgment ordered to be entered for the plaintiffs, 
 Messrs. Lindsay^. This appeal was then brought. 
 
 The Solicitor General (Sir H. S. Giffard) and Mr Benjamin, Q.C. 
 (Mr. B. Francis Williams was with them), for the appellants : — 
 
 The question here is, whether the property in the goods passed from 
 the respondents to Blenkarn. It is submitted that it did^ 
 
 A title to goods may be acquired even where they are obtained upon 
 false pretences. Though it will not be an indefeasible title, and may be 
 voidable, it will, as to third persons at least, be good till it has been 
 avoided. It must in some sense pass the property, for if it did not, it may 
 be doubtful whether a conviction for obtaining the goods could be 
 sustained. Here it is clear that there was in the first instance an inten- 
 tion on the part of the original owner that the property should pass. 
 [Lord Penzance. But was it not the intention that it should pass to 
 Blenkiron, but not to Blenkarn ?] As to some person in Wood Street the 
 intention plainly did exist that it should pass. [Lord Penzance. Is 
 there no distinction between the case of a man who, being deceived, enters 
 into a contract, and that of a man who, being also deceived, does not enter 
 into a contract ^] The latter was the case of Uardman v. Booth*, so much 
 relied on in the Court below. But that case is distinguishable from the 
 present, for there the facts shewed distinctly that the intention was to 
 contract with Thomas Gandell & Co., and with them alone ; and the firm 
 of Edward Gandell and Todd was a different firm and carried on business 
 at a different place, and was wholly unknown to the plaintifls, and Edward 
 GandeU having by fraud got hold of the goods sent to the warehouse of 
 Thomas Gandell, carried them off to his own place, and so disposed of 
 them. Here the plaintiffs themselves sent tlie goods to the person who 
 had corresponded with them, and who did carry on business at 37, Wood 
 
 1 1 Q. B. D. 348. = 2 Q. B. D. 9G. 
 
 3 There had been, in the Courts below, a question as to tlie effect of the statute 
 24 & 25 Vict. c. tJG, with regard to the restitution of the property to the original owner 
 after the conviction of the person who had fraudulently obtained it. That question 
 was also made the subject of argiunent in this House, but the judgment did not refer 
 to it. " 1 H. & C. 80.H.
 
 476 CUNDY AND BEVINGTON V. LINDSAY AND OTHERS. [CHAP. V 
 
 Street. The goods readied that destination, and were delivered there 
 according to tlie addre.ss wliich the plaintifts liad put upon them. The 
 facts of tlie two cases were unlike, and witiiout in the least doubting the 
 decision in that case, it may well be contended not to be applicable here. 
 Here the original owner allowed the goods to remain in the hands of the 
 person to wlioni lie had sent them, and while there they were sold to the 
 defendants, who were bona fide purchasers for value. After that the 
 vendor could no longer follow them as his own ; his intention had been to 
 transfer them, and the transfer was complete. In no way whatever could 
 the case be compared to one in which money or a bill of exchange was 
 delivered to a person for a particular purpose, and he used it for another, 
 and so could give no title whatever to a third person to whom he passed 
 it. Neither was this a delivery to B., who stated himself to be the agent 
 of some one else when he was not so ; it was a delivery to B. himself. 
 Credit was therefore given to him ; it was given to Blenkarn & Co., of 
 37, Wood Street. Then again, in the first instance Mr Thomson, one of 
 the partners in Messrs. Lindsay's house, made an affidavit of debt against 
 Alfred Blenkarn, which sliewed that the house recognised Blenkarn as the 
 debtor, and the transaction as one of a sale. That, though not conclusive 
 on the subject, was at least strong evidence of previous intention. It may 
 be admitted that wliere the authority to part with the property is limited, 
 and the property is parted with in disregard of that limited authority, the 
 title to it would not pass : Heg. v. Middleton ' ; but that cannot affect this 
 case, for here the goods were transmitted by the owners themselves to a 
 person and a place described by themselves. The title to the goods was 
 for the time perfect in law, and, being so, the transfer to the defendants 
 made during that time, being made bona tide, could not be impeached : 
 Pease v. Gloahec'. Till the title of Blenkarn was disaffirmed it was good, 
 and the property disposed of in the meantime could not afterwards be 
 followed in the hands of a third person who had honestly purcliased it. 
 Mr. Wills, Q.C., and Mr. Fullarion, for the respondents: — 
 Where the circumstances are such that no contract has ever arisen, 
 mere delay in declaring a disaffirmance cannot affect the case : Kingsford v. 
 Merry^ ; Boidton v. Jones'' ; Eardman v. Booth ^. Here there was no 
 contract. The plamtiffs did not know of the existence of two firms of 
 names similar to each other carrying on business in Wood Street ; tliey 
 knew only of Blenkiron & Co., and thought they were dealing with 
 Blenkiron & Co., and sent their goods to that firm. But Blenkiron &, Co. 
 knew nothing whatever of the matter. There was, therefore, no contract 
 with them. Nor was there any with Blenkarn, for by a fraud in using 
 the name of other persons he obtained possession of goods intended for 
 those other persons, and not for him. There was, therefore, no contract 
 with hiin. If so, no moment existed during which a title to the goods 
 
 1 Law Rep. 2 C. C. R. 38. ^ Law Rep. 1 P. C. 219. ^ i H. & N. 503. 
 
 * 2 H. & N. 564, see lie Reed, 3 Ch. D. 123. * i h. & C. 803.
 
 SECT, l] CTNOY AND liKVINGTON ('. LINDSAY AND OTIIKKS. 477 
 
 could be given to the defemlants. Their conversion of tlie goods was 
 consequently unlawful. 
 
 The Solicitor General replied. 
 
 The Loud Chancellor (Lord Cairns) : — 
 
 IMy Lords, you have in tliis case to discharge a duty which is always a 
 disagreeable one for any Court, namely, to determine as between two 
 parties, both of whom are perfectly innocent, upon which of the two the 
 consequences of a fraud practised upon both of them must fall. My 
 Lords, in discharging that duty your Lordships can do no more than 
 apply, rigorously, the settled and well known rules of law. Now, with 
 regard to the title to personal property, the settled and well known rules 
 of law may, I take it, be thus expressed : by the law of our country the 
 purchaser of a chattel' takes the chattel as a general rule subject to what 
 may turn out to be certain infirmities in the title. If he purchases the 
 chattel in market overt, he obtains a title which is good against all the 
 world; but if he does not purchase the chattel in market overt, and if it 
 turns out that the chattel has been found by the person who professed to 
 sell it, the purchaser will not obtain a title good as against the real owner. 
 If it turns out that the chattel has been stolen by the person who has pro- 
 fessed to sell it, the purchaser will not obtain a title. If it turns out that 
 the chattel has come into the hands of the person who professed to sell it, 
 by a de facto contract, that is to say, a contract which has purported to 
 pass the property to him from the owner of the property, there the 
 purchaser will obtain a good title, even although afterwards it should 
 appear that there were circumstances connected with that contract, which 
 would enable the original owner of the goods to reduce it, and to set it 
 aside, because these circumstances so enabling the original owner of the 
 goods, or of the chattel, to reduce the contract and to set it aside, will not 
 be allowed to interfere with a title for valuable consideration obtained 
 by some third party during the interval while the contract remained 
 unreduced. 
 
 My Lords, the question, therefore, in the present case, as your 
 Lordships will observe, really becomes the very short and simple one 
 which I am about to state. Was there any contract which, with regard 
 to the goods in question in this case, had passed the property in the goods 
 from the Messrs. Lindsay to Alfred Blenkarn % If there was any contract 
 passing that property, even although, as I have said, that contract might 
 afterwards be open to a process of reduction, upon the ground of fraud, 
 still, in the meantime, Blenkarn might have conveyed a good title for 
 valuable consideration to the present appellants. 
 
 Now, my Lords, there are two observations bearing upon the solution 
 of that question which I desire to make. In the first place, if the property 
 in the goods in question passed, it could only pass by way of contract ; 
 there is nothing else which could have passed the property. The second
 
 478 OUNDY AND BEVINGTON V. LINDSAY AND OTIIKRS. [CHAR V 
 
 observation is this, your Lordships are not here embarrassed by any conflict 
 of evidence, or any evidence whatever as to conversations or as to acts 
 done, tlie whole history of the whole transaction lies upon paper. The 
 principal parties concerned, the respondents and Blenkarn, never came 
 in contact personally — everything that was done was done by writing. 
 What has to be judged of, and what the jury in the present case had to 
 judge of, was merely the conclusion to be derived from that writing, as 
 applied to the admitted facts of the case. 
 
 Now, my Lords, discharging that duty and answering that inquiry, 
 what the jurors have found is in substance this : it is not necessary to 
 spell out the words, because the substance of it is beyond all doubt. They 
 have found that by the form of the signatures to the letters which were 
 written by Blenkarn, by the mode in which his letters and his applications 
 to the respondents were made out, and by the way in which he left 
 uncorrected the mode and form in which, in turn, he was addressed by the 
 respondents ; that by all those means he led, and intended to lead, the 
 respondents to believe, and they did believe, that the person vdth whom 
 they were communicating was not Blenkarn, the dishonest and irresponsible 
 man, but was a well known and solvent house of Blenkiron & Co., doing 
 business in the same street. My Lords, those things are found as matters 
 of fact, and they are placed beyond the range of dispute and controversy in 
 the case. 
 
 If that is so, wliat is the consequence? It is that Blenkarn — the 
 dishonest man, as I call him — was acting here just in the same way as if 
 he had forged the signature of Blenkiron ife Co., the respectable firm, to 
 the applications for goods, and as if, when, in return, the goods were 
 forwarded and letters were sent, accompanying them, he had intercepted 
 the goods and intercepted the letters, and had taken possession of the 
 goods, and of the letters wliich were addressed to, and intended for, not 
 himself but, the firm of Blenkiron & Co. Now, my Lords, stating the 
 matter shortly in that way, I ask the question, how is it possible to 
 imagine that in that state of things any contract could have arisen between 
 the respondents and Blenkarn, the dishonest man? Of him they knew 
 nothing, and of him they never thought. With him they never intended 
 to deal. Their minds never even for an instant of time rested upon him, 
 and as between him and them there was no consensus of mind which could 
 lead to any agreement or any contract whatever. As between him and 
 them there was merely the one side to a contract, where, in order to pro- 
 duce a contract, two sides would be required. With the firm of Blenkiron 
 &. Co. of course tliere was no contract, for as to them the matter was 
 entirely unknown, and therefore the pretence of a contract was a failure. 
 
 The result, therefore, my Lords, is this, that your Lordships have not 
 here to deal with one of tliose cases in which tliere is de facto a contract 
 made which may afterwards be impeached and set aside, on the ground of 
 fraud ; but you have to deal with a case which ranges itself under a
 
 SECT. l] CUNDY AND HEVINGTON V. MNDSAY AND OTIIKUS. 47'.> 
 
 completely ditl'erent chapter of law, tlu; case namely in wliicli the contract 
 never comes into existence. My Lords, that being so, it is idle to talk of 
 tiie property passing. The property remained, as it originally had been, 
 the property of the respondents, and the title which was attempted to be 
 given to the appellants was a title which could not be given to them. 
 
 My Lords, I therefore move your Lordships that this appeal be dismissed 
 with costs, and the judgment of the Court of Appeal affirmed. 
 
 Lord Hatheeley : — 
 
 My Lords, I have come to the same conclusion as that which has just 
 been expressed by my nol)le and learned friend on the woolsack. The I'eal 
 question we have to consider here, is this : whether or not any contract 
 was actually entered into between the respondents and a person named 
 Alfred Blenkarn, who imposed upon them in the manner described in the 
 verdict of the jury ; the case that was tried being one as between the 
 alleged vendors and a person who had purchased from Alfred Blenkarn. 
 
 Now the case is simply this, as put by the learned Judge in the Court 
 below ; it was most carefully stated, as one miglit expect it would be Ijy 
 that learned Judge : " Is it made out to your satisfaction that Alfred 
 Blenkarn, with a fraudulent intent to induce customers generally, and 
 Mr. Thomson in particular, to give him the credit of the good character 
 which belonged to William Blenkiron & Sons, wrote those letters in the 
 way you have heard, and had those invoices headed as you have heard," 
 and farther than that, "did he actually by that fraud induce Mr. Tliomson 
 to send the goods" "to 37, Wood Street 1" 
 
 Botli these questions were answered in the affirmative by the jury. 
 What, then, was the result 1 It was, that tliere were letters written by a 
 man endeavouring by contrivance and fraud, as appears upon the face of 
 the letters themselves, to obtain the credit of the well-known firm of 
 Blenkiron & Co., Wood Street. That was done by a falsification of the 
 signature of the Blenkirons, writing his own name in such a manner as 
 that it appeai'ed to represent the signature of that firm. And farther, his 
 letters and invoices were headed " Wood Street," which was not an 
 accurate way of heading them ; for he occupied only a room on a third 
 floor, looking into Little Love Lane on one side, and looking into Wood 
 Street on the other. He headed them in that way, in order that by these 
 two devices he might represent Jfiimself to the respondents as Blenkiron 
 of Wood Street. He did that purposely ; and it is found that he induced 
 the respondents by that device to send the goods to Blenkiron of Wood 
 Street. I apprehend, therefore, that if there could be said to liave been 
 any sale at all, it failed for want of a purcliaser. The sale, if made out 
 upon sucli a transaction as this, would have been a sale to the Blenkirons 
 of Wood Street, if they had chosen to adopt it, and to no other person 
 whatever — not to this Alfred Blenkarn, with whom the respondents had 
 not, and with whom they did not wish to have, any dealings whatever.
 
 4S0 CUNDY AND UEVINGTON V. LINDSAY AND OTHERS. [CUAI'. V 
 
 My Lords, it appears to me that that brings the case completely within 
 the authority of Hard man v. Booth', where it was held that there was no 
 real contract between tlie parties by whom the goods were delivered and 
 the concoctor of the fraud who obtained possession of them, because they 
 were not to him sold. Exactly in the same way here, there was no real 
 contract whatever with Alfred Blenkarn ; no goods had been delivered to 
 anybody except for the purpose of transferring the property to Blenkiron 
 (not Blenkarn) ; therefore the case really in substance is tlie identical case 
 of Hardiiuin v. Booth' over again. 
 
 My noble and learned friend who sits opposite to me (Lord Penzance) 
 has called my attention to a ease which seems to have Ijeen decided on 
 exactly the same principle as Ilardman v. Booth ', and it is worth while 
 referring to it as an additional authority upon that principle of law. It is 
 the case of Higgons v. Burton". There, one Dix, who had been the agent 
 of a responsible firm that had had dealings with the plaintiff in the 
 action, was dismissed by his employers ; he concealed that dismissal from 
 a customer of the firm, the plaintiff in the action, and, having concealed 
 that dismissal, continued to obtain goods from him still as acting for the 
 firm. The goods were delivered to him, but it was held that that 
 delivery was not a delivery to any person whatever who had purchased 
 the goods. The goods, if they had been purchased at all, would have 
 been purchased by the firm for which this man had acted as agent; but he 
 had been dismissed from the agency — there was no contract, therefore, 
 with the firm ; there was no contract ever intended between the vendors 
 of the goods and the person who had professed to purchase the goods as 
 the agent of that firm ; and the consequence was that there was no 
 contract at all. There, as here, the circumstance occurred that an innocent 
 person purchasing the goods from the person with whom there was no 
 contract was obliged to submit to his loss. The point of the case is put so 
 very shortly by Chief Baron Pollock, that I cannot do better tlian adopt 
 his reasoning : "There was no sale at all, but a mere obtaining of goods 
 by false pretences ; the property, therefore, did not pass out of the 
 plaintiffs." The other Judges, who were Barons Martin, Bramwell, and 
 Watson, concurred in tliat judgment. 
 
 Here, I say, exactly as in those cases of Hardman v. Booth', and 
 Higgons v. Burton', there was no sale at all; there was a representation, 
 a false representation, made by Blenkarn, by which lie got goods sent to 
 him, upon applications from him to become a purchaser, but upon invoices 
 made out to the firm of Blenkiron & Co. But no contract was made with 
 Blenkarn, nor any contract was made with Blenkiron & Co., because they 
 knew nothing at all about it, and therefore there could be no delivery of 
 the goods with the intent to pass the property. 
 
 We have been pressed very much wdth an ingenious mode of putting 
 the case on the part of the counsel who have argued wth eminent ability 
 1 1 H. & C. 803. a 26 L. J. (Ex.) 3.12.
 
 SECT. l] BOULTON V. JONES AND ANOTHER.^ 481 
 
 for tlie appellants in this case, namely suppose this fraudulent person had 
 gone himself to the firm from whom lie wislied to obtain the goods, and 
 liad represented that he was a member of one of the largest firms in 
 London. Suppose on his making that representation the goods had been 
 delivered to him. Now I am very far, at all events on the present 
 occasion, from seeing my way to this, tliat tlie goods being sold to him 
 as representing that firm lie could be treated in any other way than as an 
 agent of that firm, or suppose he had said : " I am as rich as tiiat firm. 
 I have transactions as large as those of that firm. I have a large balance 
 at my bankers ;" tlien the sale would have been a sale to a fraudulent 
 purchaser on fraudulent representations, and a sale which would have been 
 capable of being set aside, but still a sale would have been made to the 
 person who made those false representations ; and the parting with the 
 goods in that case might possibly — I say no more — have passed the 
 property. 
 
 But this case is an entirely different one. The whole case, as repre- 
 sented here is this ; from beginning to end the respondents believed they 
 were dealing with Blenkiron & Co., they made out their invoices to 
 Blenkiron ifc Co., they .supposed they sold to Blenkiron <fe Co., they never 
 sold in any way to Alfred Blenkarn ; and therefore Alfred Blenkarn 
 cannot, by so obtaining the goods, have by possibility made a good title to 
 a purcliaser, as against tlie owners of the goods, who had never in any 
 shape or way parted with the property nor with anything more than the 
 possession of it '. 
 
 Judgment appealed from affirmed ; and appeal 
 dismissed with costs. 
 
 Lords' Journals, 4th March, 1878. 
 
 BOULTON V. JONES AND ANOTHER. 
 In the Exchequer, November 25, 1857. 
 
 [Reported in 2 Hnrhtone Ct Xnrmriii, 561.] 
 
 Action for goods sold. Plea. — Never indebted. 
 
 At the trial before tlie Assessor of the Court of Passage at Liverpool, 
 it appeared tliat the plaintiff had been foreman and manager to one 
 Brocklehurst, a pipe hose manufacturer, with whom the defendants h.ad 
 been in the habit of dealing, and with whom they had a running account. 
 On the morning of the 13th January, 1857, the plaintiff bought Brockle- 
 hurst's stock, fixtures, and business, and paid for them. In the afternoon 
 of the same day, the defendant's servant brought a written order, addressed 
 ' Tlie otlier judgment is omitted. Ed. 
 
 F. ;u
 
 482 BOULTON V. JONES AND ANOTHEK. [CHAP. V 
 
 to Brocklehurst, for tliree 50-feet leather liose 21 in. The goods were 
 supplied by the plaintitl' The plaintiff's book-keeper struck out the name 
 of Brockleliurst and inserted the name of the plaintiff in the order. An 
 invoice was afterwards sent in by the plaintiff to tlie defendants, who said 
 they knew nothing of him. Upon these facts, the jury, under direction of 
 the Assessor, found a verdict for the plaintiff, and leave was reserved to 
 the defendants to move to enter a verdict for them. 
 
 Me/lish having obtained a rule nisi accordingly, 
 
 M'Oubrey now shewed cause. It is not denied by the defendants that 
 tlie goods, for tlie price of which this action is brought, were the goods of 
 the plaintiff'. No one but the plaintiff could have sued for the price of 
 tliem. By keeping the goods after notice that tlie plaintiff was the owner, 
 tlie defendants must be taken to have adopted the contract with him. 
 Bickei'ton v. BurrelP turned on the point that notice had not been given, 
 before action brought, that the plaintiff was the party really interested. 
 In that case the plaintiff represented himself as agent for another person. 
 In Humble v. Hunter' the plaintiff' had allowed her son to represent 
 himself as owner. Here the defendant may have known of the change of 
 name in the orders. In Rayner v. Grote^ the plaintiff had represented 
 liimself to be merely the agent, but, being really the principal, he was held 
 entitled to maintain the action. He referred also to Skinner v. Stocks\ 
 
 Mellish, in support of the rule. This is not a case of principal and 
 agent. In Rayner v. Grote^ there was evidence that, at the time of the 
 delivery of the lir.st parcel of tlie goods, the defendant had notice that the 
 plaintiff was the principal. [Martin, B. Here there was some evidence 
 of acceptance, the invoice was sent in and the goods were not returned.] 
 They may have been destroyed, and, in fact, were probably used at the 
 time they were ordered. No set-off could be pleaded to the present action 
 in respect of any debt which might be due from Brocklehurst to the de- . 
 fendant : Isherg v. Bowden^. The question is not to whom the goods 
 belonged, but with whom the contract was made. Htimhle v. Hunter^ 
 and Bickerton v. BurreW are authorities in favour of the defendants. 
 
 Pollock, C. B. The point raised is, whether the facts proved did not 
 shew an intention on the part of tlie defendants to deal with Brocklehurst. 
 The plaintiff, who succeeded Brocklehurst in business, executed the order 
 without any intimation of the change that had taken place, and brought 
 this action to recover the price of the goods supplied. It is a rule of law, 
 that if a person intends to contract with A., B. cannot give himself any 
 right under it. Here the order in writing was given to Brocklehurst. 
 Possibly Brocklehurst miglit have adopted the act of the plaintiff in sup- 
 plying the goods, and maintained an action for their price. But since the 
 plaintiff has chosen to sue, the only course the defendants could take was 
 to plead that there was no contract with him. 
 
 ' 5 M. & Sel. 38.3. = 12 Q. B. 310.' 3 15 M. * W. 359. 
 
 ■" 4 B. & Aid. 437. 5 8 Exeh. 8.32.
 
 SECT. l] COUTURIER AND OTHERS V. HASTIE AND ANOTHER. 483 
 
 M.\liTlN, B. I am of the same opinion. This is not a case of principal 
 and agent. If there was any contract at all, it was not with the plaintiff. 
 If a man goes to a shop and makes a contract, intending it to be with one 
 particular person, no other person can convert that into a contract witli 
 him. 
 
 Bramwell, B. The admitted facts are, that the defendants sent to a 
 shop an order for goods, supposing they were dealing with Brocklehurst. 
 The plaintiif, who supplied the goods, did not undeceive them. If the 
 plaintiff were now at liberty to sue the defendants, they would be deprived 
 of tlieir right of set-off as against Brocklehurst. When a contract is made, 
 in whicli the personality of the contracting party is or may be of import- 
 ance, as a contract with a man to write a book, or the like, or where tliere 
 might be a set-off, no other person can interpose and adopt the contract. 
 As to tlie difficulty that the defendants need not pay anybody, I do not 
 see why they should, unless they have made a conti'act either express or 
 implied. I decide the case on the ground that the defendants did not 
 know that the plaintiff was the person who supplied the goods, and that 
 allowing the plaintiff to treat the contract as made witli him would be a 
 prejudice to the defendants. 
 
 Channell, B. In order to entitle the plaintiff to recover he must 
 shew that there was a contract with himself. The order was given to the 
 plaintiff's predecessor in business. The plaintiff executes it without noti- 
 fying to the defendants who it was who executed the order. When the 
 invoice was delivered in the name of the plaintiff, it may be that the 
 defendants were not in a situation to return tlie goods. 
 
 Eu!e absolute. 
 
 GUSTAVUS COUTURIER AND OTHERS . /^'laintiffs in 
 
 (^ JliRROR. 
 
 ROBERT HASTIE AND ANOTHER . . | Defendants in 
 
 (, Error. 
 
 In the House of Lords, June 26, 27, 1856. 
 
 [Reported in 5 House of Lords' Canes, CT3.] 
 
 The plaintiffs were merchants at Smyrna ; the defendants were corn- 
 factors in London ; and this action was brought to recover from them the 
 price of a cargo of Indian corn, which had been sliipped at Salonica, on 
 board a vessel chartered by the plaintiffs for a voyage to England, and had 
 been sold in London by the defendants in error, upon a del credere com- 
 
 :n-2
 
 484 COUTURIER AND OTHERS V. HASTIE AND ANOTHER. [cHAP. V 
 
 mission. The purchaser, under the circumstances hereafter stated, liad 
 repudiated the contract. 
 
 In January, 1848, the plaintiffs chartered a vessel at Salonica, to bring 
 a cargo of 1,180 quarters of corn to England. On the 8th of February a 
 policy of insurance was effected on " corn, warranted free from average, 
 unless general, or the sliip be stranded." On tlie 22nd of that month, the 
 master signed a bill of lading, making the corn deliverable to the plaintiffs, 
 or their assigns, " he or tliey paying freight, as per charterparty, with 
 primage and average accustomed." On tlie 23rd February the ship sailed 
 on the homeward voyage. On the 1st IMay, 1848, Messrs. Bernouilli, 
 the London agents of the plaintiffs, and the persons to whom the bill of 
 lading had been indorsed, employed the defendants to sell the cargo, and 
 sent tliem tlie bill of lading, the charterparty, and tlie policy of insurance, 
 asking and recei\'ing thereon an advance of 600i!. 
 
 On the 15th May the defendants sold tlie cargo to A. B. Callander, 
 who signed a bought note, in the following terms : " Bought of Hastie 
 and Hutchinson, a cargo of about 1,180 (say eleven hundred and eighty) 
 quarters of Salonica Indian corn, of fair average quality when shipped 
 per the Kezia Page, Captain Page, from Salonica ; bill of lading dated 
 twenty-second February, at 27s. (say twenty-seven shillings) per quarter, 
 free on board, and including freight and insurance, to a safe port in the 
 United Kingdom, the vessel calling at Cork or Falmouth for orders ; 
 measure to be calculated as customary ; payment at two months from this 
 date, or in cash, less discount, at the rate of five per cent, per annum for 
 tlie unexpired time, upon handing shipping documents." 
 
 In the early part of the homeward voyage the cargo became so heated 
 that the vessel was obliged to put into Tunis, where, after a survey and 
 other proceedings, regularly and bona fide taken, the cargo was, on the 
 22nd April, unloaded and sold. It did not appear that either party knew 
 of these circumstances at tlie time of the sale. The contract liaving been 
 made on the 15th of May, Mr. Callander, on tlie 23rd of May, wrote to 
 Hastie and Hutchinson : " I repudiate the contract of the cargo of Indian 
 corn, per the Kezia Page, on the ground that tlie cargo did not exist at 
 the date of the contract, it appearing that the news of the condemnation 
 and sale of this cargo at Tunis, on the 22nd April, was published at Lloyd's, 
 and other papers, on the 12th instant, being three or four days prior to 
 its being offered for sale to me." 
 
 The plaintiffs afterwards brought this action. The declaration was in 
 the usual form. The defendants pleaded several pleas, of which the first 
 four are not now material to be considered. Tlie fifth plea was that 
 before the sale to Callander, and whilst tlie vessel was on the voyage, the 
 plaintiffs sold and delivered tlie corn to otlier persons, and that since such 
 sale the plaintifls never had any property in the corn or any right to sell 
 or dispose thereof, and that Callander on that account repudiated the sale, 
 and refused to perform his contract, or to pay the price of the corn.
 
 SECT. l] COUTURIER AND OTHERS V. UASTIE AND ANOTHER. 485 
 
 Sixthly, that before the defendants were employed by the plaintifl's, the 
 corn had become heated and greatly damaged in the vessel, and had been 
 unloaded by reason thereof, and sold and disposed of by the captain of the 
 said %essel on account of the plaintifl's at Tunis, and that Callander, for 
 that reason, repudiated the sale, &c. 
 
 The cause was tried before Mr. Baron Martin, when his Lordship ruled, 
 that the contract imported that at the time of the sale, the corn was in 
 existence as such, and capable of delivery, and that as it had been sold and 
 delivered by the captain before this contract was made, the plaintiffs could 
 not recover in the action. He therefore directed a verdict for the de- 
 fendants. The case was afterwards argued in the Court of Exchequer 
 before the Lord Chief Baron, Mr. Baron Parke, and Mr. Baron Alderson, 
 when the learned Judges diSered in opinion, and a rule was drawn up 
 directing that the verdict found for the defendants should be set aside on 
 all the pleas except the sixth, and that on that plea judgment should be 
 entered for the plaintiffs, non obstante veredicto. That the defendants 
 should be at liberty to treat the decision of the Court as the ruling at 
 Nisi Prius, and to put it on the record and bring a bill of exceptions'. 
 This was done, and the Lord Chief Baron sealed the bill of exceptions, 
 adding, however, a memorandum to the effect that he did so as the 
 ruling of the Court, but that his own opinion was in opposition to such 
 I'uling. 
 
 The case was argued on the bill of exceptions in the Exchequer 
 Chamber, before Justices Coleridge, Maule, Cresswell, Wightman, Williams, 
 Talfourd, and Crompton, who were unanimously of opinion that the 
 judgment of the Court of Exchequer ought to be reversed''. The present 
 writ of error was then brought. 
 
 The Judges were summoned, and Mr. Baron Alderson, Mr. Justice 
 Wiglitman, Mr. Justice Cresswell, Mr. Justice Erie, Mr. Justice Williams, 
 Mr. Baron Martin, Mr. Justice Crompton, Mr. Justice Willes, and Mr. 
 Baron Bramwell, attended. 
 
 Sir F. Thesiger and Mr. James Wilde for the plaintiffs in eri-or : 
 
 The purchase here was not of the cargo absolutely as a thing assumed 
 to be in existence, but merely of the benefit of the expectation of its 
 arrival, and of the securities against the contingency of its loss. The 
 purchaser bought in fact the shipping document.s, the rights and interests 
 of the vendor. A contract of such a kind is valid, Paine v. Mellor' ; Cass 
 V. Budele'. The language of the contract implies all this. The repre- 
 sentation that the corn was shipped free on board at Salonica, means that 
 the cargo was the property of, and at the risk of the shipper, C'oivnsjee v. 
 Thompson^. The Court of Exchequer proceeded on the words of this con- 
 tract, and gave the correct meaning to them. Mr. Baron Parke" said, 
 " There is an express engagement that the cargo was of average quality 
 
 ' 8 Exch. 40. s 9 Exch. 102. » G Ves. 340. •• 2 Vern. 2S0. 
 
 5 5 Moo. P. C. 1«.;. " 6 Exch. 54.
 
 480 COUTURIER AXD OTHERS ('. HASTIE AND ANOTHER. [CHAP. V 
 
 wliMi sliippod, so that it is clear that the purchaser was to run the risk of 
 all subsequent deterioration by sea damage or otherwise, for which he was 
 to be indemnitied by having the cargo fully insured ; for the '27s. per 
 quarter were to cover not merely the price, but all expenses of shipment, 
 freight, and insurance." In a contract for the sale of goods afloat, there 
 are 'two periods which are important to l)e regarded, the time of sale and 
 the time of arrival. If at the time of the sale there is anything on 
 which the contract can attach it is valid, and the vendee bound, Barr v. 
 Gibmn'. The goods are either shipped, as here, "free on board," when it is 
 clear that tliey are thencefoi'ward at the risk of the vendee, or they are 
 shipped "to arrive," which saves the vendee from all risk till they are 
 safely brought to port, Johnson v. Macdonald'- . The intention of the 
 parties is understood to be declared by difierent terms of expression, and 
 the judgment of the Exchequer Chamber here really violates that inten- 
 tion. The case of Strickland v. Turner^, which was i-eferred to by the 
 Lord Chief Baron ', is not in point, for there the annuity, which was the 
 subject of the sale, had actually ceased to exist when the sale took place ; 
 there was nothing whatever on which the contract could attach ; and the 
 principles therefore on which all contracts of sale must proceed, as ex- 
 plained and illustrated by Pothier^, whose definitions of a sale are literally 
 adopted by Mr. Chancellor Kent ", applied there, but they do not apply here, 
 for here the parties were dealing with an expectation, namely, the expectation 
 of the arrival of the cargo. As Lord Chief Baron Richards said, in Hitchcock 
 V. Giddirigs'', " If a man will make a purchase of a chance, he must abide by 
 the consequences." Here, however, the chance was only that of the arrival 
 of the cargo, and that chance was covered by the policy, for the cargo 
 itself, as stated in the contract, had been actually shipped. Had the cargo 
 been damaged at the time of this contract, the loss thereby arising must have 
 been borne by the purchaser. Suppose the com had been landed at Tunis, 
 and had remained in the warehouse there, it would have ceased to be a 
 cargo in the strict and literal meaning of the word, but the purchaser 
 would still have been bound by his contract. 
 
 The Court of Exchequer Chamber, admitting that the vendee might 
 have recovered an average loss under the policy on this cargo, said that he 
 could not have recovered if a total loss had occurred, and referred to an 
 
 > 3 Mee. & Wels. 390. » 9 Mee. & Wela. 600. ^ 7 Exch. 208. ■* 8 Exch. 49. 
 
 * Pothier, Contrat de Vente, pt. 1, s. 2, art. 1. "H faut en premier lieu, uue chose 
 qiii soil vendue, et qui fasse I'objet du contrat. Si done, ignorant que mou cheval est 
 mort, je le vends a quelqu'un il n'y am'a pas un contrat de vente, faute d'une chose qui 
 en soit I'objet. Par la meme raison, si, me trouvant avec vous a Paris, je vous vends 
 un maison que j'ai a Orleans, dans I'ignorance oii nous sommes, I'un et I'autre, que 
 cette maison a etc incendiiSe pour le total, ou pour la plus graude partie, ce contrat sera 
 nul, parceque la maison qui en faisoit I'objet n'existoit pas ; la place et ce qui restoit de 
 cette maison, n'etoient pas tant la chose qui faisoit Tobjet de notre contrat, que des 
 restes de ces choses. L. 57, ff. de Contr. Empt." 
 
 « 2 Kent's Com. IfiS. 7 4 Price, 135.
 
 SECT. l] COUTURIER AND OTHERS ('. HASTIE AND ANOTHEli. 487 
 
 admission to that effect supposed to have been made by the pi-eseiit Bai-on 
 Martin when arguing SutherlHud v. Fratt'. That admission does not 
 mean what is thus supposed ; and after the case of Iiotix v. Salvador', 
 where tliere was a total loss, and the plaintiff recovered on the policy, it is 
 difficult to understand how such an opinion could be entertained. A 
 teclmical objection arising on the form of the policy would not affect this 
 question. The purchaser's right on this policy would have been complete, 
 Phillips^, Marshall*, and March v. Piyott^. 
 
 By wliat has happened here, the purchaser has been saved the. pay- 
 ment of freight, Vliei-bonm v. Cliaprnan" ; and Owens v. Dunbar^ shews 
 that he would have been bound to accept the cargo. The contract here 
 was, that the cargo was shipped " free on board." To that extent the 
 vendor was bound, but he was not bound by any farther and implied 
 warranty, Dickson v. Zizinla'. 
 
 Mr. Butt and Mr. Bovill for the dc'fendants in error were not 
 called on. 
 
 The Lord Chaxcellou : 
 
 My Lords, this case has been very fully and ably argued on the part of 
 the plaintiffs in error, but I understand from an intimation wliich I have 
 received, that all the learned Judges who are present, including the 
 learned Judge who was of a different opinion in the Court of Excliequer, 
 before the case came to the Exchequer Chamber, are of opinion that the 
 judgment of the Court of Exchequer Chamber sought to be reversed by 
 this writ of error was a correct judgment, and they come to that opinion 
 without the necessity of hearing the counsel for the defendants in error. 
 If I am correct in this belief, I will not trouble the learned counsel for 
 the defendants in error to address your Lordships, because I confess, 
 though I should endeavour to keep my mind suspended till the case had 
 been fully argued, that my strong impression in the course of the 
 argument has been, that the judgment of the Court of Exchequer 
 Chamber is right. I should therefore simply propose to ask the learned 
 Judges, whether tliey agree in thinking that that judgment was right. 
 
 [The Judges consulted together for a few minutes, at the end of which 
 time] 
 
 Mr. Baron Alderson said. My Lords, Her Majesty's Judges are unani- 
 mously of opinion that the judgment of the Exchequer Chamber was 
 riglit, and that the judgment of tlie Court of Exchequer was wrong ; and 
 I am also of that opinion myself now, having been one of the Judges 
 before whom the case came to be heard in the Court of Exchequer. 
 
 The Lord Chancellor. My Lords, that Ijeing so, I have no hesitation 
 in advising your Lordships, and at once moving tliat the judgment of the 
 
 1 11 Mee. & Wels. 296. - 3 Bing. N. C. 2(56. -^ 1 riiill. Ins. 438. 
 
 ■> 1 Marsh Ins. 333. ^ 5 Burr. 2802. '■ 13 Muc. & Wels. 230. 
 
 ' 12 Ir. Law Kup. 30}. •" 10 Com. B. G02.
 
 488 COUTURIER AND OTHERS V. HASTIE AND ANOTHER. [CHAP. V 
 
 Court below should be affirmed. It is hardly necessary, and it has not 
 ordinarily been usual for your Lordships to go much into the merits of a 
 judgment which is tiius unanimously affirmed by the Judges who are called 
 in to consider it, and to assist tlie House in fonning its judgment. But I 
 may state shortly that the whole question turns upon the construction of 
 tlie contract which was entered into between the parties. I do not mean 
 to deny tliat many plausible and ingenious arguments have been pressed 
 by botli the learned counsel who have addressed your Lordships, showing 
 that there might have been a meaning attached to that contract different 
 from that which the words themselves impart. If this had depended 
 not merely upon tlie construction of the contract but upon evidence, 
 which, if I recollect rightly, was rejected at the trial, of what mercantile 
 usage had been, I should not have been prepared to say that a long- 
 continued mercantile usage interpreting such contracts might not have 
 been sufficient to warrant, or even to compel your Lordships to adopt a 
 ■ different construction. But in the absence of any such evidence, looking 
 to the contract itself alone, it appears to me clearly that what the parties 
 contemplated, those who bought and those who sold, was that there was 
 an existing sometliing to be sold and bought, and if sold and bought, 
 then the benefit of insurance should go with it. I do not feel pressed by 
 the latter argument, which has been brought forward very ably by Mr. 
 Wilde, derived from the subject of insurance. I think the full benefit of 
 the insurance was meant to go as well to losses and damages that occurred 
 previously to the 15th of May, as to losses and damage that occurred sub- 
 sequently, always assuming that something passed by tlie contract of the 
 15th of May. If the contract of the 15 th of May had been an operating 
 contract, and there had been a valid sale of a cargo at that time existing, 
 I think the purchaser would have had the benefit of insurance in respect 
 of all damage previously occurring. The contract plainly imports that 
 there was something which was to be sold at the time of the contract, and 
 something to be purchased. No such thing existing, I think the Court of 
 Exchequer Chamber has come to the only reasonable conclusion upon it, 
 and consequently that there must be judgment given by your Lordships for 
 the defendants in error. 
 
 Judgment for the defendants in error, with costs. 
 
 Lords' Journals, 27 June, 1856.
 
 SECT. l] BINGHAM V. BINGHAM. 489 
 
 BINGHAM V. BINGHAM. 
 
 In Chancery, October 27, 1748. 
 
 [liepoTted in 1 Yesey Senior, 126.] 
 
 An agreement was made for the sale of an estate to the plaintiff by 
 defendant, who had brought an ejectment in support of a title tliereto 
 under a will. 
 
 The bill was to liave the purcliase money refunded as it appeared to 
 have been the plaintili"s estate. 
 
 It was insisted, that it was tlie plaintiff's own fault, to whom the title 
 was produced, and who had time to consider it. 
 
 Decreed for the plaintiff witli costs, and interest for tlie money from 
 the time of bringing the bill ; for though no fraud appeared, and the 
 defendant apprehended lie had a riglit, yet tliere was a plain mistake', 
 such as the court was warranted to relieve against, and not to suffer the 
 defendant to run away witli the money in consideration of the sale of an 
 estate, to which he liad no right". 
 
 1 1 Ves. Sen. 106. 
 
 - " It has been said that even if it is made out that the purchaser has bought his 
 own property, yet that, having regard to the terms of the contract and the law, he 
 ought to be compelled to complete his purchase and pay for that which is his own. 
 The cases are divisible into two classes : first, cases in which the terms of the contract 
 preclude the purchaser from making requisitions upon the vendor as to his title ; and, 
 secondly, cases in which they preclude him not only from making inquiries from the 
 vendor as to his title, but from making any investigation anywhere about the title. 
 A condition of the latter class is no doubt valid, but the Court has never yet gone so far 
 as to hold that such a condition precludes a purchaser from saying to the vendor, at 
 any rate before the completion of the contract, ' We have both been jjroceeding under 
 a conunon mistake. You said the property was yours, but I now find by some docu- 
 ment which I have seen that it is mine, and the contract which you are asking me to 
 complete is one without consideration, for I shall be paying the purchase-money and 
 getting nothing for it.' The condition has never been construed to include such a case 
 as that. And where there has been such a common mistake, and there is no fraud, the 
 Court will not, in a suit for specific performance, compel the purchaser to complete 
 such a contract. 
 
 The case of Bingham v. Bingham, which was referred to on behalf of the defendant, 
 carries the matter further, unless the decision there depended upon fraud, as to which I 
 shall say more. That case is an authority to the effect that, under circumstances like 
 the present, even if the contract had been completed and the purchase-mouey paid, the 
 purchaser might come to the Court, and saying, 'I have paid for what was my own,' 
 compel the vendor to refund the money. That case is good law and has not been 
 questioned, and I may refer to the observations upon it which have been made in 
 several editions of Sugden's Vendors and Purchasers. In the tenth edition the case 
 will be found referred to with a long statement taken from the Registrar's book, and it 
 would seem that the case had not been considered as one of fraud. There was, it is 
 true, misrepresentation on the part of the defendant as to the state of the title, to the 
 effect that a will devising the estate to the plaintiff was invalid, the defendant insist-
 
 490 BINGHAM V. BINGHAM. [CHAP. V 
 
 ing that the testator had no power to make such devise, but that if he had, the plaintiff 
 should have been better advised before he parted with his money. But there was no 
 fraud and nothing beyond this misstatement of the legal effect of an instrument. The 
 case is referred to as an authority for the general proposition contended for by the 
 defendant and though in some editions Lord St Leonards has thrown out doubts 
 whether it would apply in the absence of the element of fraud, in the last edition he 
 dctinitely stated the case as an authority for the proposition under circumstances in 
 which 'no fraud appeared''; and the case has been recognised as an authority 
 npijlicable to cases where there has been no fraud. In Saunders v. Lord Aimcsleij-, 
 referred to by Lord St Leonards on the same page. Lord Bedesdale exjiressed a doubt 
 whether equity would interfere in a similar case in the absence of fraud. He says : 
 ' In a case of fraud it certainly might ; in a case of mere ignorance, although I incline 
 to think it might, yet after looking a little into the subject, I find great difficulty in 
 holding that a Court of Equity could interfere.' But more recently, in Cochrane 
 V. Willis^ the Master of the Kolls in the Court below, and Lord Justice Turner in the 
 Court of Appeal'', treated Binriham V. Bingham as an authority in a case of mistake as 
 distinguished from one of fraud. Binijham v. Bincfham was decided by Forteseue, M. R., 
 sitting for Lord Hardwicke. I may also refer upon this point to what was said by two 
 learned Judges, Lords Cran worth and Westbury, in Cooper v. Phihbs'\ Lord Cranworth 
 says^ : ' The consequence was, that the present Appellant, when, after the death of his 
 uncle, he entered into the agreement to take a lease of this property, entered into an 
 agreement to take a lease of what was, in truth, his own property ; for, in truth, this 
 fishery was bound by the covenant, and belonged to him, just as much as did the lands 
 of Ballysadare ; therefore, he says, I entered into the agreement under a common 
 mistake, and I am entitled to be relieved from the consequence of it. In support of that 
 proposition he relied upon a case which was decided in the time of Lord Hardwicke, 
 not by Lord Hardwicke himself, but by the then Master of the Rolls, Binriliam v. Bingham, 
 where that relief was expressly administered. I believe that the doctrine there acted 
 upon was perfectly correct doctrine, but even if it had not been, that will not at all 
 shew that tliis appellant is not entitled to this relief, because in this case the appellant 
 was led into the mistake by the misinformation given to him by his uncle, who is now 
 represented by the respondents.' 
 
 Nothing can be clearer than this, that Lord Cranworth recognised the principle that 
 the Court would, even in the case of a completed contract, give relief against a common 
 mistake in the same way as it would against fraud. And Lord Westbury says ; 
 ' It is said, " Ignorantia juris baud excusat, " but in that maxim the word " jus" is used 
 in the sense of denoting general law, the ordinary law of the country. But when the 
 word " jus" is used in the sense of denoting a private right, that maxim has no applica- 
 tion. Private right of ownership is a matter of fact ; it may be the result also of matter 
 of law ; but if parties contract under a mutual mistake and misapprehension as to their 
 relative and respective rights, the result is, that that agreement is liable to be set aside 
 as having proceeded upon a common mistake. Now, that was the case with these 
 parties — the respondents believed themselves to be entitled to the property, the 
 petitioner believed that he was a stranger to it, the mistake is discovered, and the 
 agreement cannot stand.' 
 
 It appears to me that the principle is thus rightly laid down by Lord Westbury, and 
 that it applies to the case of an existing contract in a case where the Court is asked to 
 make a decree for specific performance." Per Hall, V. C. in Jones v. Clifford, 3 Ch. D. 
 p. 790 et seq. Ed. 
 
 ' Sug. V. & P. 14th ed. p. 245. ' 2 Sch. & Lef. 101. 
 
 ' 34 Beav. 308; Law Hep. 1 Ch. 58. * Law Rep. 1 Ch. 64. 
 
 5 Law Rep. 3 H. L. 14'J. o Law Rep. 2 H. L. 1G4.
 
 SECT. l] RAFFLES V. WICUELIIAUS AND ANOTHER. 491 
 
 RAPPLE.S V. WICHELHAUS AND ANOTHER. 
 In the E.xcuequer, January 20, 180-1. 
 
 [Reported in 2 Ilurlstone and Coltman, 906.] 
 
 Declaration. For tliat it was agreed between the plaintifl' and tlie 
 defendants, to wit, at Liverpool, that the plaintiff should sell to the 
 defendants, and the defendants buy of the plaintift", certain goods, to wit, 
 12.5 bales of Surat cotton, guaranteed middling fair merchant's Dliollorali, 
 to arrive ex " Peerless " from Bombay ; and tliat the cotton sliould be 
 taken from tlie quay, and that tlie defendants would pay the plaintifl' for 
 the same at a certain rate, to wit, at the rate of 17 ^d. per pound, within a 
 certain time then agreed upon after the arrival of the said goods in 
 England. Averments : that the said goods did arrive by the said ship 
 from Bombay in England, to wit, at Liverpool, and the plaintiff was then 
 and there ready, and willing and offered to deliver the said goods to the 
 defendants, itc. Breach : that the defendants refused to accept the said 
 goods or pay tlie plaintiff for them. 
 
 Plea. That the said ship mentioned in the said agreement was meant 
 and intended by the defendants to be the ship called the " Peerless," 
 which sailed from Bombay, to wit, in October ; and that the plaintifl' was 
 not ready and willing and did not ofier to deliver to tlie defendants any 
 bales of cotton which arrived by the last mentioned ship, but instead 
 thereof was only ready and willing and ofl'ered to deliver to the defendants 
 125 bales of Surat cotton which arrived by another- and difl'erent ship, which 
 was also called the " Peerless," and which sailed from Bombay, to wit, in 
 December. 
 
 Demurrer, and joinder therein. 
 
 Milivardy in support of the demurrer. The contract was for the sale 
 of a number of bales of cotton of a particular description, which the 
 plaintiff was ready to deliver. It is immaterial by what ship the cotton 
 was to arrive, so that it was a ship called the " Peerless." The words "to 
 arrive ex ' Peerless, ' " only mean that if the vessel is lost on the voyage, 
 the contract is to be at an end. [Pollock, C. B. It would be a question 
 for the jury whether both parties meant the same ship called the 
 " Peerless."] That would be so if the contract was for the sale of a ship 
 called the "Peerless;" but it is for the sale of cotton on board a ship of 
 that name. [Pollock, C. B. The defendant only bought that cotton 
 which was to arrive by a particular ship. It may as well be said, that if 
 there is a contract for the purcliase of certain goods in Warehouse A, that 
 is satisfied by the delivery of goods of the same description in Warehouse 
 B.] In that case there would be goods in both wareliouses ; here it does 
 not appear that the plaintiff" had any goods on board the other " Peerless." 
 [Martin, B. It is imposing on the defendant a contract different from
 
 492 SMITH V. HUGHES. [CHAP. V 
 
 tl.at which lie entered into. Pollock, C. B. It is like a contract for the 
 I.ui-ohase of wine coming from a particular estate in France or Spam, 
 where there are two estates of that name.] The defendant has no right to 
 contradict by parol evidence a written contract good upon the face of it. 
 He does not impute misrepresentation or fraud, but only says that he 
 fancied the ship was a different one. Intention is of no avail, unless 
 stated at the time of the contract. [Pollock, 0. B. One vessel sailed in 
 October and the other in December.] The time of sailing is no part of the 
 
 contract. 
 
 Jfellish {Cohen with him), in support of the plea. There is nothing on 
 the face of the contract to shew that any particular ship called the 
 "Peerless" was meant; but the moment it appears that two ships called 
 the "Peerless" were about to sail from Bombay there is a latent ambiguity, 
 and parol evidence may be given for the purpose shewing that the defen- 
 dant meant one "Peerless" and the plaintiff another. That being so, 
 there was no consensus ad idem, and therefore no binding contract. He 
 was then stopped by the Court. 
 
 Per Curiam'. There must be judgment for the defendants. 
 
 Judgment for the defendants. 
 
 SMITH V. HUGHES. 
 In the Queen's Bench, June 6, 1871. 
 
 [Reported in Law lieports, 6 Queen's Bench, 597.] 
 
 Appeal from the County Court of Surrey holden at Epsom. 
 
 The plaintiff sought to recover 34 H. 15s. %d., being the price of sixteen 
 quarters of oats sold by the plaintiff to the defendant at 34s. per quarter, 
 and the loss on the resale by the plaintiff of twenty-nine quarters of oats 
 agreed to be purchased by the defendant, and which he refused to receive ; 
 and the storage of the quarters of oats for five weeks. 
 
 The plaintiff is a farmer. The defendant is an owner and trainer of 
 racehorses. 
 
 The plaintiff's evidence was as follows : "In July last I had a quantity 
 of new winter oats for sale. I was anxious to get rid of them, because 
 oats were then dear, the supply of English oats being very short. On 
 Saturday, the 31st of July, I took a sample of these oats to Hughes, who 
 manages for the defendant, and asked him if he was a buyer of oats. He 
 replied he was always a buyer of good oats. I said I had some good oats 
 
 ' Pollock, C. B., Martin, B., and Pigott, B.
 
 SECT, l] SMITH V. HUGHES. 493 
 
 for sale ; he asked me how many'! I told him from forty to fifty quarters ; 
 he said he would have them all if they were good. I shewed him my 
 sample, and asked 35s. a quarter ; he took the sample, and said he 
 would give me an answer next day. On the following Monday he wrote 
 to me to say he would take the oats at 34s. a quarter, and I then sent in 
 sixteen quarters. Soon afterwards I met the defendant, and he saitl, 
 ' Why, those were new oats you sent me.' I replied, ' Well, I knew they 
 were, and had none others.' He said, ' I thought I was buying old oats. 
 New oats are useless to me ; you must take them back again.' I refused 
 to take them back." On ci-oss-examination, the plaintiff said : "I was not 
 aware that the defendant nev-er bought new oats. I do not know that 
 trainers never use new oats ; a trainer has since this transaction offered 
 me money for new oats. I never told defendant that they were old 
 oats. Nothing was said about it : the word ' old ' was not mentioned by 
 either of us." 
 
 Hughes, the defendant's manager, stated : " The plaintiff asked me if 
 I "was a buyer of oats. I said I was always a buyer of good old oats. 
 He said, 'I have some good old oats for sale,' and he gave me a sample, and 
 asked me 35s. a, quarter. I said I would let him know. I wrote to say 
 I would give him 34s. When I found they were new oats, I refused to 
 have them, and they were immediately returned to the plaintiff on his 
 refusal to fetch them back. I never buy new oats if I can get old. 
 Trainers, as a rule, use old oats." On cross-examination, witness hesitated 
 and contradicted himself somewhat as to whether the word " old " was used 
 at the time of making the contract. 
 
 Evidence was also given for the defendant, that at the time of the 
 contract 34s. a quarter was a very high price for new oats, and such as a 
 prudent man of business would not have given ; but that oats were then 
 very scarce. 
 
 In summing up, the judge told the jury that the first question for their 
 consideration was, whether the word "old" had been used by the plaintiff 
 or defendant in making the contract, and that the inclination of his 
 opinion was that the word " old " had not been so used ; but that was a 
 question entirely for their consideration. If they were of opinion that 
 the word " old " had been so used, they would return a verdict for the 
 defendant. If, however, they thought that the word " old " had not been 
 used, the second question would be, whether they were of opinion, on the 
 state of the evidence, that the plaintiff believed the defendant to believe, 
 or to be under the impression, that he was contracting for the purchase of 
 old oats. If so, there would be a verdict for the defendant. But if the 
 jury were of opinion that nothing was said as to the oats being old or new, 
 and if they were of opinion that the plaintiff did not believe that the 
 defendant believed or was under the impression that he was contracting 
 for old oats, then they would find for the plaintiff. 
 
 The jury found a verdict for the defendant.
 
 4,94 SMITH V. HUGHES. [CHAP. V 
 
 The question for the opinion of the Court was, whether the direction 
 to the jury as above is or is not correct. 
 
 May 2. Pollock, Q.C. {Mc Kellar with him), for the plaintiff. The 
 ju(lf;e was wrong to leave the second question to the jury. If the plaintiff 
 "believed tlie defendant to believe that he was buying old oats, the plaintiff 
 was under no legal obligation to undeceive liim. The defendant had the 
 sample : he could judge for himself what he was buying, and if he had 
 any doubt as to the subject-matter of the contract he might liave de- 
 manded a warranty. In Benjamin on the Sale of Personal Property, 
 p. 315, it is stated : " The mistaken belief as to facts may be created by 
 active means or by fraudulent concealment, or knowingly false representa- 
 tion ; or passively, by mere silence, when it is a duty to speak. But it is 
 only where a party is under some pledge or obligation to reveal facts to 
 another that mere silence wall be considered as a means of deception." So 
 in Story on Contracts, s. 519, it is laid down : "A distinction should be 
 observed between the concealment of extrinsic circumstances affecting the 
 value of the subject-matter of sale, or operating as an inducement to a 
 contract, such as the state of the market ; and the concealment of 
 intrinsic circumstances appertaining, to its nature, character, and con- 
 dition, such as natural defects and injuries. In respect of intrinsic cir- 
 cumstances, the rule is that mere silence as to anytliing which the other 
 party might by proper diligence have discovered, and which is open 
 to his examination, is not fraudulent unless a special trust or confidence 
 exist between the parties, or be implied from the circumstances of the 
 case. ... In respect to extrinsic circumstances, the rule is that neither 
 party is ordinarily bound to notify them to the other, and mere 
 concealment will not nullify the contract. But the party concealing a 
 fault must be careful to do no act and say no word indicative of his 
 assent to any mistaken proposition by the other ; and must play an 
 entirely negative part, for if he do anything positive he will render him- 
 self liable." If, therefore, the plaintiff believed that the defendant was 
 under the impression that he was buying old oats, and did nothing by 
 word or act to produce this impression on tlie mind of the defendant, but 
 merely allowed him to remain under that impression, the plaintiff's 
 conduct is not such as would avoid the contract. According to Paley', 
 a promise is to be interpreted " in the sense in which the promiser appre- 
 hended at the time that the promisee received it." Tlie judge's direction 
 ought to have been, that if the plaintiff believed the defendant to believe 
 that tlie plaintiff had contracted to sell to the defendant old oats, then 
 they should find their verdict for the defendant. The question as to the 
 difference between concealment and mere silence is discussed by Cicero". 
 He puts the case of a merchant at Rhodes selling corn in a time of 
 
 ' Paley's Moral and Political Philosophy, book in., chap. 5. 
 - Cicero de OfEciis, Lib. in., capp. xii., xiii.
 
 SECT. l] SMITH V. HUGHES. 495 
 
 scarcity, and asks the question whether the seller is hound to inform the 
 buyer of what he is aware but the buyer is not, viz., that tliere arc 
 otlier ships laden with corn on their way to Rhodes. The conclusion 
 arrived at appears to be that he is not acting dishonestly in not giving 
 the information. 
 
 Arthur Wilson, for the defendant. The judge's direction, in substance, 
 amounts to this : If the defendant contracted to buy old oats, he is not 
 bound to accept new oats. And in that sense the direction is correct. If 
 the plaintiif was selling new oats, and the defendant was buying old oats, 
 tlie parties were not ad idem, and there was no contract ; and that is 
 what the jury have found. Tliat the sale was by sample is immaterial; 
 the sample only aflects the quality, provided the subject-matter is the 
 thing contracted for: Azpinnr v. Casella' ; Mod;/ v. Gregson'. In Chitty 
 on Contracts, 5th ed. p. 593, the law on the subject is thus stated : " It 
 has been held that, where one party to a contract stands by and allows 
 the other to enter into the contract under a delusion of the existence 
 of which he was aware, and which he might have removed, the contract is 
 void : " citing Uill v. Gray^. 
 
 Pollock, Q.C., in reply. In Keats v. CaJor/an', Jervis, C. J., points out 
 that in Bill v. Gray^ there appears to have been a positive aggressive 
 deceit ; and that case, therefore, is no authority for the proposition for 
 which it is cited in Chitty on Contracts. 
 
 Cur. adv. \-idt. 
 
 June 6. The following judgments were delivered : — 
 
 CocKBURN, C. J. This was an action brought in the county court of 
 Surrey, upon a contract for the sale of a quantity of oats by plaintifl" to 
 defendant, which contract the defendant had refused to complete, on the 
 ground that the contract had been for the sale and purchase of old oats, 
 whereas the oats tendered by the plaintiff had been oats of the last crop, 
 and therefore not in accordance with the contract. 
 
 The plaintiif was a farmer, tlie defendant a trainer of racehorses. 
 And it appeared that the plaintiff, having some good winter oats to sell, 
 had applied to the defendant's manager to know if he wanted to buy 
 oats, and having received for answer that he (the manager) was always 
 ready to buy good oats, exhibited to him a sample, saying at the same 
 time that he had forty or fifty quarters of the same oats for sale, at the 
 price of 35s. per quarter. The manager took the sample, and on the 
 following day wrote to say he would take the whole quantity at the price 
 of 34s. a quarter. 
 
 Thus far the parties were agreed ; but there was a conflict of evidence 
 between them as to whether anything passed at the interview between 
 the plaintiff and defendant's manager on the subject of the oats being old 
 
 1 Law Rep. 2 C. P. 431. - Law Eep. 4 Ex. 49. 
 
 ' 1 Stark, 434. * 10 C. B. 591 ; 20 L. .T. (C. P.) 7G.
 
 496 SMITH V. HUGHES. [CHAP. V 
 
 oats, the defendant asserting that he liad expressly said tliat he was ready 
 to buy old oats, and that the plaintiff liad replied that the oats were old 
 oats, while the plaintiff denied that any reference had been made to the 
 oats being old or new. 
 
 The plaintiff liaving sent in a portion of the oats, the defendant, on 
 meeting him afterwards, said, " Why, those were new oats you sent me ; " 
 to which the plaintiff having answered, " I knew they were ; I had none 
 other." The defendant replied, " I thought I was buying old oats : new 
 oats are useless to me ; you must take them back." This the plaintiff re- 
 fused to do, and brought tliis action. 
 
 It was stated by the defendant's manager that trainers as a rule always 
 use old oats, and that his own practice was never to buy new oats if he 
 could get old. 
 
 But the plaintiff denied having known that the defendant never 
 bought new oats, or that trainers did not use them ; and, on the contrary, 
 asserted that a trainer had recently offered him a price for new oats. 
 Evidence was given for the defendant that 34s. a quarter was a very high 
 price for new oats, and such as a prudent man of business would not have 
 given. On the other hand, it appeared that oats were at the time very 
 scarce and dear. 
 
 The learned judge of the county court left two questions to the jury: 
 first, whether the word " old " had been used with reference to the oats in 
 the conversation between the plaintiff and the defendant's manager ; 
 secondly, whether the plaintifl" had believed that the defendant believed, 
 or was under the impression, that he was contracting for old oats ; in 
 either of which cases he directed the jury to find for the defendant. 
 
 It is to be regretted that the jury were not required to give specific 
 answers to the questions so left to them. For, it is quite possible that 
 their verdict may have been given for the defendant on the first ground ; 
 in which case there could, I think, be no doubt as to the propriety of the 
 judge's direction ; whereas now, as it is possible that the verdict of the 
 jury — or at all events of some of them — may have proceeded on the 
 second ground, we are called upon to consider and decide whether the 
 ruling of the learned judge with reference to the second question was right. 
 
 For this purpose we must assume that nothing was said on the subject 
 of the defendant's manager desiring to buy old oats, nor of the oats 
 ha\'ing been said to be old ; while, on the other hand, we must assume 
 that the defendant's manager believed the oats to be old oats, and that the 
 plaintiff was conscious of the existence of such belief, but did nothing, 
 directly or indirectly, to bring it about, simply offering his oats and 
 exhibiting his sample, remaining perfectly passive as to what was passing 
 in the mind of the other party. The question is whether, under such 
 circumstances, the passive acquiescence of the seller in the self-deception 
 of the buyer will entitle the latter to avoid the contract. I am of opinion 
 that it will not.
 
 SECX l] SMITH V. HUGHES. 497 
 
 The oats offered to the defendant's manager were a specific parcel, of 
 which the sample submitted to him formed a part. He kept the sample 
 for twenty-four hours, and had, therefore, full opportunity of inspecting it 
 and forming his judgment upon it. Acting on his own judgment, he 
 wrote to the plaintili', offering him a price. Having this opportunity of 
 inspecting and judging of the sample, he is practically in the same position 
 as if he had inspected the oats in bulk. It cannot be said that, if he had 
 gone and personally inspected the oats in bulk, and then, believing — but 
 without anything being said or done by the seller to bring about such a 
 belief — that the oats were old, had offered a price for them, he would have 
 been justified in repudiating the contract, because the seller, from the 
 known habits of the buyer, or other circumstances, had reason to infer 
 that the buyer was ascribing to the oats a quality they did not possess, and 
 did not undeceive him. 
 
 I take the true rule to be, that where a specific article is offered for sale, 
 without express warranty, or without circumstances from which the law will 
 imply a warranty, as where, for instance, an article is ordered for a specific 
 purpose, and the buyer has full oppoi'tunity of inspecting and forming his own 
 judgment, if he chooses to act on his own judgment, the rule caveat emptor 
 applies. If he gets the article he contracted to buy, and that article corre- 
 sponds with what it was sold as, he gets all he is entitled to, and is bound by 
 the contract. Here the defendant agreed to buy a specific parcel of oats. The 
 oats were what tiiey were sold as, namely, good oats according to the sample. 
 The buyer persuaded himself they were old oats, when they were not so ; 
 but the seller neither said nor did anything to contribute to his deception. 
 He has himself to blame. The question is not what a man of scrupulous 
 morality or nice honour would do under such circumstances. The case 
 put of the purchase of an estate, in which there is a mine under the sur- 
 face, but the fact is unknown to the seller, is one in which a man of 
 tender conscience or high honour would be unwilling to take advantage of 
 the ignorance of the seller ; but there can be no doubt that the contract for 
 the sale of the estate would be binding. 
 
 Mr. Justice Story, in his work on Contracts (vol. I. s. 516), states the 
 law as to concealment as follows : — " The general rule, both of law and 
 equity, in respect to concealment, is that mere silence with regard to a 
 material fact, which there is no legal obligation to divulge, will not avoid 
 a contract, although it operate as an injury to the party from whom it is 
 concealed." "Thus," he goes on to say (s. 517), "although a vendor is 
 bound to employ no artifice or disguise for the purpose of concealing 
 defects in the article sold, since that would amount to a positive fraud on 
 the vendee ; yet, under the general doctrine of caveat emptor, he is not, 
 ordinarily, bound to disclose every defect of which he may be cognizant, 
 although his silence may operate virtually to deceive the vendee." "But," 
 he continues (s. 518), "an improper concealment or suppression of a 
 material fact, which the party concealing is legally bound to disclose, and 
 F. 32
 
 498 SMITH V. HUGHES. [CHAP. V 
 
 of whicli tlie other party has a legal right to insist that he sliall be in- 
 formed, is fraudulent, and will invalidate a contract." Further, distin- 
 guishing between extrinsic circumstances affecting the value of the subject- 
 matter of a sale, and the concealment of intrinsic circumstances apper- 
 taining to its nature, character, and condition, he points out (s. 519), that 
 •with reference to the latter, the rule is " that mere silence as to anything 
 which the other party might by proper diligence have discovered, and 
 which is open to his examination, is not fraudulent, unless a special trust 
 or confidence exist between the parties, or be implied from the circum- 
 stances of the case." In the doctrine thus laid down I entirely agree. 
 
 Now, in this case, there was plainly no legal obligation in the plaintiff 
 in the first instance to state whether the oats were new or old. He offered 
 them for sale according to the sample, as he had a perfect right to do, and 
 gave the buyer the fullest opportunity of inspecting the sample, which, 
 practically, was equivalent to an inspection of the oats themselves. What, 
 then, was there to create any trust or confidence between the parties, so 
 as to make it incumbent on the plaintiff to communicate the fact that the 
 oats were not, as the defendant assumed them to be, old oats 1 If, 
 indeed, the buyer, instead of acting on his own opinion, had asked the 
 question whether the oats were old or new, or had said anything which 
 intimated his understanding that the seller was selling the oats as old oats, 
 the case would have been wholly different ; or even if he had said any- 
 thing which shewed that he was not acting on his own inspection and 
 judgment, but assumed as the foundation of the contract that the oats 
 were old, the silence of the seller, as a means of misleading him, might 
 have amounted to a fraudulent concealment, such as would have entitled 
 the buyer to avoid the contract. Here, however, nothing of the sort 
 occurs. The buyer in no way refers to the seller, but acts entirely on his 
 own judgment. 
 
 The case of Horsfall v. Thomas', if that case can be considered good law, 
 is an authority in point. In that case a gun which had been manufactured 
 for a purchaser, had, when delivered, a defect in it, which afterwards 
 caused it to burst ; yet it was held that, although the manufacturer, 
 instead of making the purchaser acquainted with the defect, had resorted 
 to a contrivance to conceal it, as the buyer had had an opportunity of in- 
 specting the gun, and had accepted it without doing so, and had used it, 
 it was not competent to him to avoid the contract on the ground of fraud. 
 The case has, however, been questioned, and dissenting altogether from 
 the decision, I notice it only to say that my opinion in the present case 
 has been in no degree influenced by its authority. 
 
 In the case before us it must be taken that, as the defendant, on a 
 
 portion of the oats being delivered, was able by inspection to ascertain 
 
 that they were new oats, his manager might, by due inspection of the 
 
 sample, have arrived at the same result. The case is, therefore, one of the 
 
 » 1 H. & C. 90 ; 31 L. J. (Ex.) 322.
 
 SECT. l] SMITH V. HUGHES. 499 
 
 sale and purcliase of a specific article after inspection by the buyer. 
 Under these circumstances the rule caveat emptor clearly applies ; more 
 especially as this cannot be put as a case of latent defect, but simply as 
 one in which the seller did not make known to the buyer a circumstance 
 afl'ecting the quality of the thing sold. The oats in question were in no 
 sense defective, on the contrary they were good oats, and all that can be 
 said is tliat they had not acquired the quality which greater age would 
 have given them. There is not, so far as I am aware, any authority for 
 the position that a vendor who submits the subject-matter of sale to tlie 
 inspection of the vendee, is bound to state circumstances which may tend 
 to detract from the estimate which the buyer may injudiciously have 
 formed of its value. Even the civil law, and the foreign law, founded 
 upon it, which require that the seller shall answer for latent defects, have 
 never gone the length of saying that, so long as the thing sold answers to 
 the description under which it is sold, the seller is bound to disabuse the 
 buyer as to any exaggerated estimate of its value. 
 
 It only remains to deal with an argument which was pressed upon us, 
 that the defendant in the present case intended to buy old oats, and the 
 plaintiff to sell new, so the two minds were not ad idem ; and that conse- 
 quently there was no contract. This argument proceeds on the fallacy of 
 confounding what was merely a motive operating on the buyer to induce 
 liim to buy with one of the essential conditions of the contract. Both 
 parties were agreed as to the sale and purchase of this particular parcel of 
 oats. Tlie defendant believed the oats to be old, and was thus induced to 
 agree to buy them, but lie omitted to make their age a condition of the 
 contract. All that can be said is, that the two minds were not ad idem 
 as to the age of the oats ; they certainly were ad idem as to the sale and 
 purchase of them. Suppose a person to buy a hor.se without a warranty, 
 believing )iim to be sound, and the horse turns out unsound, could it be 
 contended that it would be open to him to say that, as he had intended to 
 buy a sound horse, and the seller to sell an unsound one, the contract was 
 void, because the seller must have known from the price the buyer was 
 willing to give, or from his general habits as a buyer of horses, that he 
 thought the horse was sound ? The cases were exactly parallel. 
 
 The result is that, in my opinion, the learned judge of the county court 
 was wrong in leaving the second question to the jury, and that, conse- 
 quently, the case must go down to a new trial. 
 
 Blackburn, J. In this case I agree that on the sale of a specific 
 article, unless there be a warranty making it part of the bargain that it 
 possesses some particular quality, the purchaser mu.st take the article he 
 has bought though it does not possess that quality. And I agree that even 
 if the vendor was aware that the purchaser thought that the article 
 possessed that quality, and would not have entered into the contract 
 unless he had so tiiought, still the purcliaser is bound, unless the vendor 
 
 32—2
 
 500 SMITH V. HUr.HES. [CHAP. V 
 
 was "uilty of some fraud or deceit upon him, and tliat a mere abstinence 
 from disaliusing the purchaser of that impression is not fraud or deceit ; 
 for, whatever may be the case in a court of morals, there is no legal 
 obligation on the vendor to inform the purchaser that he is under a 
 mistake, not induced by the act of the vendor. And I also agree tliat 
 where a specific lot of goods are sold by a sample, which the purchaser in- 
 spects instead of the bulk, tlie law is exactly the same, if the sample truly 
 represents the bulk ; though, as it is more probable that the purcliaser in 
 such a case would ask for some further warranty, slighter evidence would 
 suffice to prove that, in fact, it was intended there should be such a 
 warranty. On this part of the case I liave notliing to add to what the Lord 
 Chief Justice lias stated. 
 
 But I have more difficulty about the second point raised in the case. 
 I apprehend that if one of the parties intends to make a contract on one 
 set of terms, and the otiier intends to make a contract on another set of 
 terms, or, as it is sometimes expressed, if the parties are not ad idem, 
 there is no contract, unless the circumstances are such as to preclude one 
 of the parties from denying that he has agreed to the terms of the other. 
 The rule of law is tliat stated in Freeman v. Cooke'. If, whatever a 
 man's real intention may be, he so conducts himself that a reasonable 
 man would believe that he was assenting to the terms proposed by the 
 other party, and that other party upon that belief enters into the contract 
 with him, the man thus conducting himself would be equally bound as if 
 he had intended to agree to the other party's terms. 
 
 Tlie jury were directed that, if they believed the word "old " was used, 
 they should find for the defendant — and this was right ; for if that was 
 the case, it is obvious tliat neither did the defendant intend to enter into 
 a contract on the plaintiff's terms, that is, to buy this parcel of oats with- 
 out any stipulation as to their quality ; nor could the plaintifl" have been 
 led to believe he was intending to do so. 
 
 But tlie second direction raises the difficulty. I think that, if from 
 that direction the jury would understand that they were first to consider 
 whether they were satisfied that the defendant intended to buy tliis parcel 
 of oats on the terms that it was part of his contract with the plaintifl' 
 that they were old oats, so as to have the warranty of the plaintiff" to that 
 efTect, they were properly told that, if that was so, the defendant could 
 not be bound to a contract without any such warranty unless the plaintiff" 
 was misled. But I doubt whether the direction would bring to the 
 minds of the jury the distinction between agreeing to take the oats under 
 the belief that tliey were old, and agreeing to take the oats under the 
 belief tliat the plaintifT contracted that tliey were old. 
 
 The diiTerence is the same as that between buying a horse believed to 
 be sound, and buying one believed to be warranted sound ; but I doubt if 
 it was made obvious to the jury, and I doubt this the more because I do 
 ' 2 Ex. at p. 663; 18 L. J. (Ex.) at p. 119.
 
 SECT. l] SMITH ('. HUGHES. 501 
 
 not see mucli evidence to justify a tiiidiug for tlie defendant on tliis 
 latter ground if tlie word "old" was not used. There may liave been 
 more evidence than is stated in the case ; and the demeanour of the 
 witnesses may have strengthened the impression produced by the evidence 
 there was ; but it does not seem a very satisfactory verdict if it proceeded 
 on this latter ground. I agree, therefore, in tlie result that there should 
 be a new trial. 
 
 Hannen, J. I think there should be a new trial in this case, not 
 because the ruling of the county court judge was incorrect, but because, 
 having regard to the evidence, I tliink it doubtful whether the jury 
 sufficiently understood the direction they received to enable them to 
 take it as their guide in determining the question submitted to them. 
 
 It appears from the evidence on both sides that the plaintift' sold tlie 
 oats in question by a sample which tlie defendant's agent took away for 
 examination. The bargain was only completed after this sample had been 
 in the defendant's possession for two days. This, without more, would 
 lead to the conclusion tliat the defendant bouglit on his own judgment as 
 to the quality of the oats represented by the sample and with the usual 
 warranty only, that the bulk should correspond witli it. There miglit, 
 however, be superadded to this warranty an express condition that the 
 oats should be old, and the defendant endeavoured by his evidence to 
 establish that there was such an express bargain between him and the 
 plaiutiif. This was the first question wliicli tlie jury had to con.sider ; but 
 as they have not stated whether they answered it in favour of the 
 defendant, it is possible — and, from tlie judge's report, it is most pro- 
 bable — that they did not so answer it, and the case must be considered on 
 the assumption that there was no express stipulation that the oats 
 were old. 
 
 There might have been an implied term in the contract ari.sing from 
 previous dealings or other circumstances, that the oats should be old ; but 
 the learned judge probably thought the evidence did not make it necessary 
 that he should leave this question to the jury. And the second question, 
 which he did leave to them, seems intended to ascertain whether there was 
 any contract at all between the parties. 
 
 It is essential to the creation of a contract that both parties should 
 agree to the same thing in the same sense. Thus, if two persons enter 
 into an apparent contract concerning a particular person or ship, and it 
 turns out tliat each of tliem, misled by a similarity of name, had a difl'ereiit 
 person or ship in his mind, no contract would exist between them : liaj/les 
 V. Wichelhaus'. 
 
 But one of the parties to an apparent contract may, by his own fault, 
 be precluded from setting up that he had entered into it in a dill'erent 
 sense to that in whicli it was understood by tlie other party. Thus in the 
 
 ' 2 H. A C. dOH; :i.S h. J. (Ex.) 1(10.
 
 502 SMITH V. HUGHES. [CHAP. V 
 
 case of a sale by sample wliere the vendor, by mistake, exhiliited a wrong 
 sample, it was held tliat the contract was not avoided by this error of the 
 vendor: Scott -v . Littledah\ 
 
 But if in the last-mentioned case the purchaser, in the course of the 
 negotiations preliminary to the contract, had discovered that the vendor 
 was under a misapprehension as to the sample he was offering, the vendor 
 would have been entitled to shew that he had not intended to enter into 
 the contract by which the purchaser sought to bind him. The rule of law 
 applicable to such a case is a corollary from the rule of morality which 
 Mr. Pollock cited from Paley', that a promise is to be performed "in that 
 sense in which the promiser apprehended at the time the promisee re- 
 ceived it," and may be thus expressed : " The promiser is not bound to 
 fulfil a promise in a sense in which the promisee knew at the time the 
 promiser did not intend it." And in considering the question, in what 
 sense a promisee is entitled to enforce a promise, it matters not in what 
 wav the knowledge of the meaning in which the promiser made it is 
 brought to the mind of the promisee, whether by express words, or 
 by conduct, or previous dealings, or other circumstances. If by any 
 means he knows that tliere was no real agreement between him and the 
 promiser, he is not entitled to insist that the promise shall be fulfilled in a 
 sense to which the mind of the promiser did not assent. 
 
 If, therefore in the present case, the plaintiff knew that the defendant, 
 in dealing with him for oats, did so on the assumption that the plaintiff 
 was contracting to sell him old oats, he was aware that the defendant 
 apprehended the contract in a difl'erent sense to that in which he meant 
 it, and he is thereby deprived of the right to insist that the defendant 
 shall be bound by that which was only the apparent, and not the real 
 bargain. 
 
 This was the question which the learned judge intended to leave to the 
 jury ; and, as I have already said, I do not think it was incorrect in its 
 terms, but I think that it was likely to be misunderstood by the jury. The 
 jury were asked, "whether they were of opinion, on the whole of the 
 evidence, that the plaintiff believed the defendant to believe, or to be 
 under the impression that he was contracting for the purchase of old oats? 
 If so, there would be a verdict for the defendant." The jury may have 
 understood this to mean that, if the plaintiff believed the defendant to 
 believe that he was buying old oats, the defendant would be entitled to 
 the verdict ; but a belief on the part of the plaintiff that the defendant 
 was making a contract to buy the oats, of which he offered him a sample, 
 under a mistaken belief that they were old, would not relieve the defendant 
 from liability unless his mistaken belief were induced by some misrepre- 
 sentation of the plaintiff, or concealment by him of a fact which it be- 
 came his duty to communicate. In order to relieve the defendant it was 
 > 8 E. <S B. 815; 27 L. J. (Q. B.) 201. 
 ' Moral and Political Philosophy, Book in., ch. v.
 
 SECT. l] KELLY V. SOLARI. 503 
 
 necessary that the jury should tind not merely that the plaintiff believed 
 the defendant to believe that he was buyint; old oats, but that he believed 
 the defendant to believe that lie, tlie plaintiti", was contracting to sell old 
 oats. 
 
 I am the more disposed to think that the jury did not understand the 
 question in this last sense because I can find very little, if any, evidence 
 to support a finding upon it in favour of the defendant. It may be 
 assumed that the defendant believed the oats were old, and it may be 
 suspected that the plaintifi" thought he so believed, but the only e\'idence 
 from which it can be inferred that the plaintiff believed that the defendant 
 thought that the plaintiff was making it a terra of the contract that the 
 oats were old is that the defendant was a trainer, and that trainers, as a 
 rule, use old oats ; and that tlie price given was high for new oats, and 
 more than a prudent man would have given. 
 
 Having regard to the admitted fact tliat the defendant bought the 
 oats after two days' detention of the sample, I think that the evidence 
 was not sufficient to justify the jury in answering the question put to them 
 in the defendant's favour, if they rightly understood it ; and I therefore 
 think there should be a new trial. 
 
 Judgment accordingly. 
 
 KELLY V. SOLARI. 
 In the Exchequer, November 18, 1841. 
 
 [Beported in 9 31eeson d- Welsly, 54.] 
 
 Assumpsit for money paid, money had and received, and on an account 
 stated. Plea, non assumpsit. At the trial Ijefore Lord Abinger, C. B., at 
 the London sittings after Trinity Term, it appeared that this was an action 
 brought by the plaintiff, as one of the directors of the Argus Life As- 
 surance Company, to recover from the defendant, Madame Solari, the sum 
 of 197/. lOs. alleged to have been paid to her by the company under 
 a mistake of fact, under the following circumstances. 
 
 Mr. Angelo Solari, the late husband of the defendant, in the year 
 1836, effected a policy on his life with the Argus Assurance Company for 
 200/. He died on the 18th of October, 1840, leaving the defendant his 
 executrix, not having (by mistake) paid the quarterly premium on the 
 policy, which became due on the 3rd of September preceding. In Novem- 
 ber, the actuary of the office informed two of the directors, Mr. Bates and 
 Mr. Clift, that the policy had lapsed by reason of the non-payment of the 
 premium, and Mr. Clift thereupon wrote on the policy, in pencil, the word
 
 504 
 
 KELLY V. SOLARL [CHAP. V 
 
 "lapsed." On tlie 6th of February, 1841, the defendant proved her 
 husband's will; and on the 13th, applied at the Argus office for the pay- 
 ment of tlie sum of 1000^., secured upon the policy in question and two 
 otliers. Messrs. Bates and Clift, and a third director, accordingly drew a 
 cheque for QS71. 10s., which they handed to the defendant's agent, the 
 discount being deducted in consideration of the payment being made three 
 months earlier than by the rules of the office it was payable. Messrs. 
 Bates and Clift stated in evidence, that they had, at the time of so paying 
 the money, entirely forgotten that the policy in question had lapsed. 
 Under these circumstances the Lord Chief Baron expressed his opinion, 
 that if the directors had had kno^vledge, or the means of knowledge, of the 
 policy ha\'ing lapsed, the plaintiff could not recover, and that their after- 
 wards forgetting it would make no difference ; and he accordingly directed 
 a nonsuit, reserving leave to the plaintiff to move to enter a verdict for 
 him for tlie amount claimed. 
 
 Thesiger, in the former part of this term, obtained a rule nisi ac- 
 cordingly, or for a new trial ; against which, 
 
 J'latt and Butt now shewed cause. It has long been a settled principle 
 of law, that a party cannot recover back money which he has paid with 
 full knowledge, or means of knowledge, of all the circumstances, although 
 lie was not legally liable to the payment of it, if it be not unconscientious 
 in tlie other party to retain it. That is e.xpressly laid down by Bayley, J., 
 in Milnes v. Duncan'; and the same rule of law liad been previously 
 recognised in Bil.bie v. Lumley\ [Parke, B. All that that case decides 
 is that money paid with full knowledge of all the facts cannot be recovered 
 back by reason of its having been paid in ignorance of the law. But in 
 the case of Lucas v. Worsivick^, it was held tliat money may be recovered 
 back which was paid under a forgetfulness of facts within the plaintiff's 
 knowledge.] That was not the case of money which, being paid, could in 
 equity or conscience be retained, since it was the second payment of the 
 same debt. But here it was admitted that the omission to pay the 
 premium was a mere mistake. [Parke, B. The important bearing of 
 that case is, that it shews that although the mistake be of facts within the 
 party's knowledge, if the money be paid under the influence of that mis- 
 take, it may be recovered back.] This being also added, that it is not 
 retainable in equity or conscience. Here tlie defendant was an executrix; 
 she made the demand bona fide ; when received, the money became assets ; 
 and if she have distributed it, she must herself, if the plaintiff succeeds, be 
 at the loss of it, for no fault of hers. It was paid with full means of 
 knowledge throughout all the stages of the transaction. Brisbane v. 
 Dacres'' is a strong authority in favour of the defendant. 
 
 Thesiger and Whate.ley, contra. The real question in such cases as the 
 present has been, not whether tlie party had or has used the means of 
 
 ' 6 B. & C. fi71 ; D. & K. 731. = 2 East, 469. 
 
 'IMA Rob. 293. * 5 Taunt. 143.
 
 SECT. l] KELLY V. SOLARL 505 
 
 knowledge within his reach, but whether the money was paid under a mis- 
 take of fact or of law. If under a mistake of fact, then, if nothini:; lias 
 subsequently occurred to render it unconscientious to recover it, it may be 
 recovered back. Such is stated to be the general rule of law in Wilkinson 
 V. Johnston^; and there is no authority that the possession of the means of 
 knowledge, simply, is sufficient to disentitle the party to recover back 
 money paid by him under innnediate ignorance of the facts. Now forget- 
 fulness is immediate ignorance of the facts. The question is, was the pay- 
 ment a voluntary payment, with knowledge at the time. The doctrine, 
 that means of knowledge are equivalent to knowledge, rests altogether on 
 the dictum of Bayley, J., in Mihies v. Duncan, and is not supported either 
 by the former or subsequent authorities. Bllbie v. Lumley proceeded 
 entirely on the ground of the payment having been made in ignorance of 
 the law. In Chat field v. Paxton^, Ashliurst, J., said, that " wliere a pay- 
 ment had been made, not with full knowledge of tlie facts, but only under 
 a blind suspicion of the case, and it was found to have been paid unjustly, 
 the party might recover it back again." That is an expression which 
 implies that full knowledge was obtainable by further investigation. So, 
 in Cox V. Prentice/, the plaiiitilF had tlie fullest means of knowledge, had 
 he chosen to avail himself of tliem. In Lucas v. Worswick, the plaintiff 
 was held entitled to recover, because the money was paid by him under a 
 mistake of fact at the time : and that is the real test. [Loed Abinger, 
 C. B. This appears to be like tlie case of a payment on a balance of 
 accounts, when it was always taken "errors excepted;" in such a case, 
 money paid on a miscalculation of the items may be recovered back.] Yet 
 the party there has full means of knowledge, since, with a little more care, 
 tlie items might liave been calculated correctly ; and the same rule of law 
 must apply to all cases of payment by mistake. And it is in every case 
 unconscientious to retain money paid under a mistake of fact, where the 
 receiver knows that it was not meant to be paid knowingly. They cited 
 also Bize v. Dickason'', and Criiips v. Reade^, and were then stopped by 
 the Court. 
 
 Lord Abinger, C. B. I think the defendant ought to have had the 
 opportunity of taking the opinion of the jury on the question whether in 
 reality the directors had a knowledge of the facts, and therefore tliat there 
 should be a new trial, and not a verdict for the plaintiff; although I am 
 now prepared to say that I laid down the rule too broadly at the trial, as 
 to the effect of their having had means of knowledge. That is a very 
 vague expression, and it is difficult to say with precision what it amounts 
 to ; for example, it may be tliat the party may have the means of know- 
 ledge on a particular subject, only by sending to and obtaining information 
 from a correspondent abroad. In the case of BUbie v. Lumley, the argu- 
 
 1 2 B. & Cr. 429; 5 D. & R. 403. ' 2 East, 47X, n. 
 
 3 3 M. & Selw. 344. * 1 T. R. 285. ' 6 T. R. 606.
 
 506 KELLY V. SOLARL [CHAP. V 
 
 nient as to tlie party having means of knowledge was used by counsel, and 
 adopted by some of tlic judges ; but that was a peculiar case, and there 
 can be no question that if the point had been left to the jury, they would 
 have found that the plaintifl' had actual knowledge. The safest rule however 
 is, that if the party makes the payment with full knowledge of the facts, 
 although under ignorance of the law, there being no fraud on the other 
 side, he cannot recover it back again. There may also be cases in which, 
 although he might by investigation learn the state of facts more accurately, 
 he declines to do so, and chooses to pay the money notwithstanding; 
 in that case there can be no doubt that he is equally bound. Then there 
 is a tliird case, and the most difficult one, — where the party had once a 
 full knowledge of the facts, but has since forgotten them. I certainly laid 
 down the rule too wdely to the jury, when I told them that if the 
 directors once knew the facts they must be taken still to know them, and 
 could not recover by saying that they had since forgotten them. I think 
 the knowledge of the facts which disentitles the party from recovering, 
 must mean a knowledge existing in the mind at the time of payment. I 
 have little doubt in this case that the directors had forgotten the fact, 
 otherwise I do not believe they would have brought the action ; but as 
 Mr. Piatt certainly has a right to have that question submitted to the 
 jury, there must be a new trial. 
 
 Parke, B. 1 entirely agree in the opinion just pronounced by my 
 Lord Chief Baron, that there ought to be a new trial. I think that where 
 money is paid to another under the influence of a mistake, that is, upon 
 the supposition that a specific fact is true, which would entitle the other 
 to the money, but which fact is untrue, and the money would not have 
 been paid if it had been known to the payer that the fact was untrue, an 
 action will lie to recover it back, and it is against conscience to retain it ; 
 though a demand may be necessary in those cases in which the party 
 receiving may ha\'e been ignorant of the mistake. The position that 
 a person so paying is precluded from recovering by laches, in not availing 
 himself of the means of knowledge in his power, seems, from the cases 
 cited, to have been founded on the dictum of Mr. Justice Bayley, in the 
 case of Millies v. Duncan ; and with all respect to that authority, I do not 
 think it can be sustained in point of law. If, indeed, the money is inten- 
 tionally paid, without reference to the truth or falsehood of the fact, the 
 plaintiff meaning to waive all inquiry into it, and that the person receiving 
 shall have the money at all events, whetlier the fact be true or false, the 
 latter is certainly entitled to retain it ; but if it is paid under the impres- 
 sion of the truth of a fact which is untrue, it may, generally speaking, be 
 recovered back, however careless the party paying may have been, in 
 omitting to use due diligence to inquire into the fact. In such a case the 
 receiver was not entitled to it, nor intended to have it. 
 
 GuRNEY, B., concurred.
 
 SECT. II] BEHN V. BURNESS. 507 
 
 RoLFE, B. I am of the same opinion. With respect to the argument, 
 tliat money cannot be recovered back e.\cept where it is unconscientious to 
 retain it, it seems to me, that wherever it is paid under a mistake of fact, 
 and the party would not have paid it if the fact had been known to him, 
 it cannot be otherwise than unconscientious to retain it. But I agree that 
 Mr. Piatt has a right to go to the jury again, upon two grounds : first, 
 that tlie jury may possibly find that the directors had not in truth forgot- 
 ten the fact ; and secondly, they may also come to the conclusion, that 
 they had determined that they would not expose the office to unpopularity, 
 and would therefore pay the money at all events ; in which case I quite 
 agree that they could not recover it back. 
 
 Rule absolute for a new trial. 
 
 SECTION II. 
 
 MISEEPRESENTATION. 
 
 BEHN V. BURNESS. 
 In the Queen's Bench, January 21, 1862. 
 [Reported in 1 Best <£ Smith, 877.] 
 In the Exchequer Chamber, February 24, 1863. 
 
 [Reported in 3 Beet <£ Smith, 751.] 
 
 The declaration alleged that the plaintiff and the defendant agreed by 
 charter-party that the plaintiff's ship, called the Martaban, then in the 
 port of Amsterdam, and being tight, staunch, strong, and every way fitted 
 and ready for the voyage, should, with all possible despatch, proceed direct 
 to Newport, Monmouthshire, and that the defendant should there load her 
 with a full cargo of coals, which she should carry to Hong Kong, and 
 there deliver, in consideration of freight to be paid after the rate of sixty 
 shillings sterling for every ton of twenty hundredweight of coals so 
 delivered, and at the times and in the manner following : that is to say, 
 one-third by charterer's acceptance at three months' date from the final 
 sailing of the vessel, or at the owner's option in cash, under discount of 
 two and a half per cent.; one-third by charterer's acceptance at six months' 
 date, the charterer to insure the amount and deduct the cost of insurance ; 
 and the remaining one-third of the freight by the charterer's acceptance at 
 three months' date from the delivery to the charterer in London of a
 
 508 HEHN V. BURNESS. [CHAP. V 
 
 certificate in writing, signed by tlie consignee, of the right and true 
 delivery of the cargo agreeably to bills of lading, or in cash under discount 
 of five pounds per cent, per aimum, at charterer's option; and that the 
 defendant should be allowed ten days for loading, and should receive the 
 said car^o as delivered from on board at the rate of not less than thirty-five 
 tons a working day, weather permitting, or in default should pay demur- 
 rage at the rate of four pence per ton register per like day. Averment of 
 performance by the plaintiff and default by the defendant. 
 
 Plea. That at the time of making the charter-party time was an 
 essential and material part of the contract, and tlie then situation of the 
 ship was a material and essential part of the contract, as the plaintifl' and 
 defendant respectively then well knew, and that the said ship was not, at 
 the time of making the said charter-party, in the port of Amsterdam, of 
 which the defendant tlien had no knowledge or notice. 
 
 Issue. 
 
 The following special case, of which the pleadings were to be deemed 
 part, was stated by consent of the parties under the order of a judge : — 
 
 By memorandum of charter-party, dated London, the 1 9th October, 1860, 
 the plaintiff's ship, Martaban, was chartered to the defendant in the words 
 and figures following, viz. : " It is this day mutually agreed between 
 A. Behn, Esq., owner of the good ship or vessel called the Martaban, of 
 420 tons or thereabouts, now in the port of Amsterdam, and James 
 Burness, Esq., of London, merchant, that the said ship, being tight, 
 staunch, strong, and every way fitted and ready for the voyage, shall, with 
 all possible despatch, proceed direct to Newport, Monmouthshire, address- 
 ing to Messrs. G. W. Jones & Co. for entering and clearing, and there load 
 in the usual and customary manner in ten days at any one of the usual 
 loading places. Freighter may name a full and complete cargo of coals, 
 which said freighter binds himself to ship, not exceeding what she can 
 reasonably stow and carry over and above her tackle, apparel, provisions 
 and furniture (the captain to have a suflicient quantity of coal on board at 
 port of loading for ship's use for the voyage, and have the same indorsed 
 on bills of lading, independently of the cargo) ; and being so loaded, shall 
 therewith proceed to Hong Kong, or so near thereunto as she may safely get, 
 and deliver the same alongside any craft, steamer, floating depot, or pier 
 named by the consignee, notice to be given to the agent or consignee of the 
 vessel being ready to discharge (the act of God, the Queen's enemies, riots and 
 strikes of pitmen, fire, and all and every other dangers and accidents of the 
 seas, rivers, and navigation always mutually excepted) ; the freight to be paid 
 on the quantity delivered in accordance with this charter, at and after the 
 rate of sixty shillings sterling per ton of twenty hundred- weight in full of all 
 port charges, wharfage, consulage, pilotage, Ramsgate and Dover dues, and 
 to become due, say one-third by charterer's acceptance at 3 months' date 
 from the final sailing of the vessel, or at owner's option in cash, under dis- 
 count at '2h per cent. ; one-third by charterer's acceptance at 6 montiis,
 
 SECT, ri] BEHN V. BURNESS. 509 
 
 the charterer to insure the amount and deduct tlie costs of insurance ; the 
 remaining one-third of the freight, less tlie cost of any coals short delivered 
 at the port of final discharge, and after deducting such cash as may be 
 advanced by the agent of the charterer for sliip's use, wliich tlie captain is 
 at liberty to draw to extent of '2001. on usual terms against captain's draft 
 on charterer at 90 days' sight, to be paid by the charterer at 3 months' 
 date from the delivery to the charterer in London of a certificate in 
 writing signed by the consignee, of the right and true delivery of the cargo 
 agreeably to bills of lading, or in cash under discount at 5 per cent, per 
 annum, at freighter's option. The vessel to deliver as customary, and the 
 cargo to be delivered by the captain and received by the consignee at the 
 rate of not less than 3.5 tons a working day, weather permitting, or to pay 
 a demurrage at the rate of four pence per ton register per like day. The 
 vessel to be addressed to freighter's agents inwards only, at the port of 
 discharge, free of commission, but paying 2 per cent, to charterer in 
 London, same to be deducted from first payment of freight : any claim of 
 average to be settled according to the custom at Lloyd's : a connnission of 
 5 per cent, on amount of freight is due by the owner on signing this 
 charter-party to David Brown, ship-broker, London, and to whom the ship 
 is to be addressed on her return to London : penalty for non-performance 
 of this agreement, estimated amount of freight." 
 
 The ship Martaban arrived on the previous 15th October, 1860, at 
 Niewdiep, at the entrance to the Great Noord Hollandische Canal, on her 
 way with a cargo from Sourabaya to the docks at Amsterdam, which, 
 under favourable circumstances, she could have reached in twelve hours 
 more ; but, in consequence of strong gales from the opposite quarter, and 
 the absence of steam-tug power, she was unavoidably prevented from 
 reaching the place of discharge in the Amsterdam Docks before daybreak 
 on the 23rd day of the same month of October. Niewdiep, the place 
 where the vessel was unavoidably detained by the circumstances aforesaid 
 on the said 19th day of October, the date of the above recited memoran- 
 dum of charter-party, is a place in the direct course of the said vessel to 
 Amsterdam, and is sixty-two English miles from that place, but is not 
 within the port of Amsterdam. 
 
 The ship Martaban, having discharged her cargo with all possible 
 despatch, was immediately made ready for sea, and without any delay 
 sailed on the sLxteenth day of November, and proceeded direct for New- 
 port, pursuant to the charter-party, and arrived there on the first Decem- 
 ber following. Notice was given to the defendant's agent at Newport, on 
 the fifth day of the same December, that the ship was ready to receive 
 cargo, and on the 16th December the stipulated lay days expired. The 
 defendant continually, up to the expiration of the said lay days and after- 
 wards, refused to load the ship. The plaintifi", as soon as possible there- 
 after, namely, on the 20th December, rechartered the vessel for Hong 
 Kong from Newport, with a cargo of coals, at a smaller rate of freiglit
 
 510 BEHN V. BURNESS. [CHAP. V 
 
 than the defendant liad agreed to pay, being at the time the highest that 
 could be olitaincd ; and thereupon the vessel, having loaded with all 
 possible despatch, sailed without delay for Hong Kong. 
 
 The following statement is added at the request of the defendant's 
 counsel, and under protest by the plaintiiT's counsel : — 
 
 Before the charter was made, the defendant told' the plaintiff's broker 
 that he, tlie defendant, had a contract with the English government to 
 supply coals at Hong Kong in China, and that he was taking up tlie sliip 
 for the purpose of fulfilling that contract. The defendant did not state 
 that there was any limit of time for the performance of the contract with 
 the government, but he said that there had been so much delay in the 
 sailing of tlie ships previously taken up, he would not take up any which 
 he was not certified was ready, or as near as possible ready. 
 
 The question for the opinion of the court is, Whether the words " now 
 in the port of Amsterdam " in the said charter-party amount to a 
 warranty ; and, if so, whether the position of the ship Martaban on the 
 nineteenth day of October amounted under the circumstances to a breach 
 of that warranty. 
 
 If the court shall be of opinion, that the plaintiff is entitled to recover, 
 the question of damages is to be referred to the master, and judgment to 
 be entered for the plaintiff for sucli damages and costs of suit. 
 
 If the court shall be of opinion that the plaintiff is not entitled to re- 
 cover, then judgment of nolle prosequi, wdth costs of defence, shall be 
 entered up for the defendant. 
 
 Manisty {2Iaclachlan with him), for the plaintiff. The words in this 
 charter-party, " now in the port of Amsterdam," do not constitute a 
 warranty or condition precedent to the contract that the ship was there at 
 the time of the execution of tiie instrument ; and, if they did, here was no 
 breach of it. The rule in construing contracts of this nature is to look to 
 the intention of the parties as collected from the instrument. Here the 
 intention was that the statement of the position of the ship should be mere 
 matter of description, and if any damage resulted to the charterer from 
 his object being frustrated in consequence of her not being in that position 
 at the time, his remedy should be by a cross-action for damages ; and this 
 construction is in accordance with that put on instruments of this nature 
 in Ritchie v. Atkinson^, Freeman v. Taylor^, Clips/w-7n v. Vertue^, Barker v. 
 Windle^. Dimech v. Corlett'', where the previous cases are reviewed, is an 
 express authority on the point. [Crompton, J. Ollive v. Booker ", decided 
 eleven years before, seems the other way. His lordship also mentioned 
 Boone v. Eyre\ Wightman, J., referred to Kenyan v. Berthon" and Colby 
 v. Hunter^.'\ Those two cases were on policies of insurance, which are a 
 very different thing, for there the whole risk and premium depends on the 
 
 1 10 East, 295. 2 g B;„g i24. 3 5 Q. B. 625. * 6 E. <& B. 675. 
 
 » 12 Moo. P. C. C. 199. " 1 Exch. 416. ? 1 H. Bl. 273 (note). 
 
 8 1 Dougl. 12, n. (4). s 1 Mood. & M. 81.
 
 SECT. Il] BEHN I'. BUR^fESS. 511 
 
 representation. Groat inconvenience would result from holding such 
 matters as these conditions precedent ; for if the statement as to the exact 
 position of the ship or the time of her sailing is to be deemed part of the 
 essence of the contract, the variance of a few yards or minutes would 
 vitiate the whole. Moreover, if the words, " now in the port of Amsterdam," 
 are to be construed as amounting to a condition precedent, a similar con- 
 struction ought to be put on the other words in the same sentence, being 
 " tight, staunch, strong, and in every way fitted and ready for the voyage," 
 which is contrary to Tarrahochia v. Hickie'. 
 
 The verbal statement introduced into this case under protest ought not 
 to be attended to : the doing so would have the effect of importing a verbal 
 statement into a charter-party. Hurst v. Usborne". [Wightsian, J. The 
 new matter introduced makes no difference, because it says, the ship must 
 be "ready, or as near as possible ready."] 
 
 F. M. White (Ilonyman with him), contra. The statement of the 
 position of the ship in this charter-party is a warranty that she was at that 
 place at the time, and the facts shew a breach of it. The rule has been 
 correctly stated by the other side, that the thing to be looked to is the in- 
 tention of the parties as collected from the instrument. It is to be observed 
 that the words here are not the usual ones, that the ship shall proceed on 
 her voyage " with all convenient speed," but " with all possible despatch." 
 OUlve V. Booker^ is an authority in point for the defendant ; and there are 
 several other instances where statements of this nature have been held to 
 amount to conditions precedent : e.g., that a ship shall answer a particular 
 description. Hurst v. Usborne'; that she shall be seaworthy when about to 
 sail, Thompson Y. Gillespy'^ ; that she shall sail on a particular day, Craiiston 
 V. Marshall''; Groockewit v. Fletcher"; that she shall be ready to receive 
 cargo at a certain time, Oliver v. Fielden^ ; and that goods are on passage 
 at the time of sail, Gorrisseii v. Perrin". 
 
 As to the authorities which have been cited by the other side, Dimech 
 V. Corlett^ was decided on its peculiar circumstances; Ritchie v. Atkinson^" 
 was an action for freight, and there had been a part performance, and it is 
 distinguished on that ground in Glaholm v. Hai/s". Bai-ker v. Windle, in 
 the Exchequer Chamber "', is more fully reported, 25 L. J. Q. B. 349, nom. 
 Windle v. Barker, from whence, and especially from the judgment of 
 Martin, B., it appears that the question there was one of fact rather than 
 of law : besides, the ship was only described as being of tlie specified size, 
 or "thereabouts," so that there could be no pretence for suggesting a 
 warranty as to size. 
 
 Manisty, in reply. It is doubtful whether Cranston v. MarshaW and 
 
 1 1 H. & N. 183. 2 18 C. B. 144. s 1 Excb. 416. 
 
 4 5 E. & B. 209. '< 5 Exch. 395. « 1 H. & N. 893; 20 L. J. Exch. 1,13. 
 
 ' 4 Ex. 135. 8 2 C. B. (n.s.) C81. " 12 Moo. P. C. C. 199. 
 
 '» 10 East, 295. " 2 Man. & Gr. 257. ■= 6 E. & B. 675.
 
 512 BEHN V. BURN ESS. [CHAP. V 
 
 Croockcwit v. Fletcher' will stand, if brought before a higher tribunal. If 
 they do, it will be on the ground taken in Tarrabochia v. Uickie' and 
 Seeger v. Duthie\ that a contract that a ship shall sail on a given day is a 
 warranty, although a contract that she is to sail "within a reasonable 
 time," or " with all possible despatch," is not. If the words here amount 
 to a warranty, no qualification can be grafted on it, for a warranty must 
 be taken in omnibus. 
 
 CoCKBURN, C. J. Our judgment should be for the plaintiff. I feel 
 considerably embarrassed by the conflict of autliority which we find in 
 the cases that have been brought under our attention in the course of the 
 learned arguments on both sides. 
 
 OUive V. Booker* appears to me directly in point. The statement in 
 the cliarter-party there was that the ship, relating to which the question 
 arose, was then "at sea, having sailed three weeks ago ;" and the Court of 
 Exchequer held that that fact was a condition precedent to the enforcing 
 of the contract by the shipowner against the charterer. On the other 
 hand, Dimech v. Corletl'' appears also in point to this case, and is in conflict 
 with the preceding one of OUive v. Booker'^. In Dimech v. CorMt^ the re- 
 presentation was that the vessel, the subject of the charter-party, was then 
 at anchor at a given place, and it appeared that, so far was that from 
 being the fact, she was dry in dock and undergoing the process of being 
 sheathed in copper ; and the contract was that she, being in the position 
 described, should sail "with all convenient speed." The Privy Council 
 held that her being in that position was not a condition precedent — that, 
 if she was not there, it was merely matter of cross action for damages ; or, 
 that, if the object of the voyage was frustrated, it might be a good answer 
 to an attempt of the shipowner to enforce the contract against the 
 charterer. 
 
 In this conflict of the decisions the right course for this Court is to 
 abide by the later decision, which is also that of a Court of very high au- 
 thority, and one or more of the members of which were particularly con- 
 versant with shipping law. 
 
 I own if this question were res integra I should be much disposed to 
 think that the best mode of construing these charters, where there is a re- 
 presentation as to the place of a ship, or as to the time of sailing, or 
 analogous matter, would be to hold that, if the fact represented turns out 
 not to be correctly stated, and in consequence of it the charterer finds 
 himself in a position where his speculation and enterprise may be frustrated, 
 and the contemplated advantages of them converted into disaster and loss, 
 that should justify him in repudiating the contract. But, on the other 
 hand, where the representation is that the ship is at a given place, or is to 
 sail on a given day, &c., and it turns out that she was not there, or could 
 
 1 1 H. & N. 893; 26 L. J. Exch. 153. = 1 H. & N. 183. 
 
 » 8 C. B. (n.s.)45; 2!)L. J. (C. P.) 2.53. ■i 1 Exch. 410. " 12 Moo. P. C. C. 199.
 
 SECT. II] BERN V. BURNESS. 513 
 
 not sail for some short time after tliat speciiied, etc., and tliere is no real 
 frustration of the objects of the charterer, and little or no damage has 
 been done to him, he should be left to his action. I throw this out with a 
 view to legislation rather tlian to interpretation of the law, supposing no 
 authority on the subject. I do not feel it at all necessary to express 
 judicially any opinion upon it ; I only say that here is a conflict of au- 
 thoiity, and I will abide by the latest decision. I sincerely hope that the 
 parties will go to a Court of error where the law may be satisfactorily 
 settled. 
 
 I have to say, on the part of my brother Wightman', that he thinks 
 we ought to abide by the cases referred to by Mr White, and ought not to 
 overrule them on the opinion of the Privy Council. 
 
 Ckompton, J. The difficulty here is that there are so many of these 
 decision.s, and it is not easy to reconcile them. I join in the opinion of my 
 Lord Chief Justice that this case should go to a Court of error, which will 
 be less hampered by contradictory decisions, and able to lay down the law 
 more authoritatively than we can, who are only a Court of co-ordinate 
 jurisdiction. Many of the cases justify my brother Wightman in his 
 doubts, but I agree witli the view of my Lord Chief Justice. 1 think it 
 lies on the party setting up this kind of statement as a condition precedent 
 to shew that it is one, i. e. that the parties intended that there was to be 
 no contract unless the stipulation was performed to tlie letter. Now, 
 looking at the earlier authorities, I cannot help thinking that the law on 
 this subject is a branch of the general law as laid down in Boone v. Eyre'. 
 Lord Mansfield there says: "The distinction is very clear, where mutual 
 covenants go to the whole of the consideration on both sides they are 
 mutual conditions, the one precedent to the other. But where they go 
 only to a part, where a breach may be paid for in damages, there the 
 defendant has a remedy on his covenant, and shall not plead it as a con- 
 dition precedent." Here a very minute matter, such as a discrepancy of a 
 day or an hour, would be a Isreach if the statement is to be taken as a 
 condition precedent ; wliich is the proper expression, as stated by my 
 brotlier Williams in Barker v. Windle^ in the Excliequer Chamber, who 
 points out that "warranty" is not the correct one, for if tliere is a warranty 
 the party must sue on it. 
 
 The early cases bear very much the aspect that things of this kind are 
 to be looked on as matter of stipulation merely, unless you can see very 
 clearly from the terms of tlie instrument that it was the intention of the 
 parties not to be bound unless they were performed to a hair's breadth. 
 The words in the present charter-party, that the ship was to sail " with all 
 possible despatch," created my chief doubt ; but it is too slight to act on. 
 Now Ollive V. Booker \ which was decided about eleven years ago, and 
 
 1 Wightman, J., had left the Court before the judgment. 
 
 - 1 H. Bl. 273, note. •' 6 E. * B. (WS, fiV'J. •• 1 Exch. 41(;. 
 
 F. 
 
 •A:i
 
 514 BEEN V. BURNESS. [CHAP. V 
 
 sonic other cases, viuierl the old notion about independent stipulations. 
 I was never quite satisfied witli tliem, hut should feel bound by them. 
 OUive V. lloo/cer' is very near the present case, but Diiiiech v. CorUtf is 
 still nearer, for it is almost word for word. I should not like to found my 
 judgment on any minute or fine-spun difference between those two eases, 
 yet, when we look at the decisions which liave taken place within the last 
 two or three years, we must consider OJlive v. Booker as in some degree 
 shaken, and that they are I think nearer to what the law ought to be. 
 At all events, we must go by the latest authority, and leave the question 
 to tlie Exchequer Chamber. 
 
 Mellor, J. With very considerable hesitation I have arrived at the 
 same conclusion with my Lord Chief Justice and my brother Crompton. 
 I cannot distinguisli this case from OUive v. Booker. That case has, 
 however, been broken in on by the subsequent decision in Dimech v. Corlett, 
 and I shall therefore abide by that decision. I should have been glad if 
 OlUve V. Booker had been alluded to in the judgment there, and the dis- 
 tinction between the cases pointed out. I consider that the onus of 
 proving this statement to be a condition precedent lies on the person who 
 asserts it to be such. Looking at the charter-party, I do not think this is 
 a condition precedent, but rather think it is not. 
 
 Judgment for the plaintiff. 
 
 The defendant having brought error on the foregoing judgment. 
 
 Ilonynvm (Borill with him), for the defendant, cited Cockburn v. 
 Alexander''; Glaholm v. Hays*; OUive v. Booker^; Oliver v. Fielden^; 
 Tarrabochia v. Hickie'; C'roockewit v. Fletcher"; Hurst v. Usbonie"; 
 CraTision V. Marshall"; Bannermanv. White^°; Van Bagge^i v. Baines". 
 
 Manisty {Maclachlan with him), contra, cited Freeman v. Taylor''^; 
 Seeger v. Duthie^^; Barker, appellant, v. Wiiulle, respondent'*; Glaholm v. 
 Hays*; Elliot v. Von Glehn'"; Dimech v. Corlett^. 
 
 Honyman, in reply. 
 
 Cur. adv. vuU. 
 
 The judgment of the Court was now delivered by 
 
 Williams, J. The question in this case is, whether the statement in 
 the charter-party, that the ship is " now in the port of Amsterdam, " is a 
 "representation" or a "warranty," using the latter word as synonymous 
 with "condition;" in which sense it has been for many years understood 
 with respect to policies of insurance and charter-parties. 
 
 It may be expedient to commence the consideration of this question 
 
 ' 1 Exch. 416. = 12 Moo. P. C. C. 199. » e C. B. 791. 
 
 ^ 2 M. & Gr. 257. « 4 gxch. 135. « 1 H. & N. 183. ? 1 H. A- N. 893. 
 
 s 18 C. B. 144. 9 5 Esch. 395. " 10 C. B. (n.s.) 844, 850. 
 " 9 Exch. 523. 12 8 Bing. 124. '^ 8 C. B. (n.s ) 45. 
 
 '^ 6 E. & B. 675. i.'i 13 Q. B. 632.
 
 SECT. Il] BEHN ('. BURNESS. 515 
 
 by some examination into the nature of representations. Propei-ly .speak- 
 ing, a repi'esentation is a statement, or assertion, made by one party to the 
 other, before or at the time of the contract, of some matter or circumstance 
 relating to it. Though it is sometimes contained in the written instrument, 
 it is not an integral part of the contract ; and, consequently the contract 
 is not broken though the representation proves to be untrue ; nor, (with 
 the exception of the case of policies of insurance, at all events marine 
 policies, which stand on a peculiar anomalous footing) is such untruth any 
 cause of action, nor has it any efficacy whatever, unless the representation 
 was made fraudulently, either by reason of its being made with a knowledge 
 of its untruth, or by reason of its being made dishonestly, with a reckless 
 ignorance whether it was true or untrue. (See Elliott v. Von Glehn^ ; 
 WheeUonv. Hardisty'.) 
 
 If this be so, it is difficult to understand the distinction which is to be 
 found in some of the treatises, and is in some degree perliaps .sanctioned by 
 judicial authority (see Barker, appellant, Windle, respondent',) that a 
 representation, if it differs from the truth to an unreasonable extent, 
 may affect the validity of the contract. Where, indeed, the misrepresenta- 
 tion is so gross as to amount to sufficient evidence of fraud, it is obvious 
 that the contract would on that ground be voidalile. 
 
 Though representations are not usually contained in the written instru- 
 ment of contract, yet they sometimes are. But it is plain that their 
 insertion therein cannot alter their nature. A question however may 
 arise, whether a descriptive statement in the written instrument is a mere 
 representation, or whether it is a substantive part of the contract. This is 
 a question of construction which the Court, and not the jury, must 
 determine. If the Court should come to the conclusion that such a state- 
 ment by one party was intended to be a substantive part of his contract, 
 and not a mere representation, the often discussed question may, of course, 
 be raised, wliether this part of the contract is a condition precedent, or 
 only an independent agreement, a breacli of which will not justify a 
 repudiation of the contract, but will only be a cause of action for a 
 compensation in damages. In the construction of charter parties, this 
 question has often been raised, with reference to stipulations that some 
 future thing sliall be done or shall happen, and has given i-ise to many nice 
 distinctions. Thus a statement that a vessel is to sail, or be ready to 
 receive a cargo, on or before a given day, has been held to be a condition 
 (see Glaholin v. Hays*; Olirer v. Fiddn.n'' ; Cronckewit v. Fletcher"; Seeger 
 V. Duthie'), while a stipulation tliat she shall sail with all convenient 
 speed, or within a reasonable time, has been held to be only an agreement 
 (see Tarrabochia v. Hickie"; Dimech v. Corktt''; Clipsham v. Vertue'"). 
 
 ' 13 Q. B. 632. - 8 E. & B. 232; on appeal, 8 Id. 285. 
 
 •' 6 E. & B. 675, 680. ■• 2 JL & G. 257. ^ 4 Exch. 135. 
 
 6 1 H. & N. 893. " 8 C. B. (n.s.) 45. » 1 H. A" N. 183. 
 
 » 12 Moo. r. C. C. 109. '" 5 Q. B. 205.
 
 516 BKHN V. BURNESS. [CHAP. V 
 
 r.ut with respect to stateinents in a contract descriptive of tlie subject- 
 matter of it, or of some material incident thereof, tlie true doctrine, 
 established by principle as well as authority, appears to be, generally 
 speaking, tliat if such descriptive statement was intended to be a substan- 
 tive part of the contract, it is to be regarded as a wai-ranty, that is to say, 
 a condition on the failure or nonperformance of which the other party 
 may, if lie is so minded, repudiate the contract in toto, and so be relieved 
 from performing his part of it, provided it has not been partially executed 
 in his favour. If, indeed, he has received the whole or any substantial 
 part of the consideration for the promise on his part, the warranty loses 
 the character of a condition, or, to speak perhaps more properly, ceases to 
 be available as a condition, and becomes a warranty in the narrower sense 
 of the word — viz., a stipulation by way of agreement, for the breach of 
 which a compensation must be sought in damages (see Ellen v. Topp', 
 Graves v. Legy"; adopting the observations of Serjt. Williams on tlie case 
 of Boone v. Eyre^, in 1 Saund. 320 d, 6th ed.; Elliott v. Von Glehn*). 
 Accordingly, if a specific thing has been sold, with a warranty of its 
 quality, under such circumstances that the property passes by the sale, the 
 vendee having been thus benefited by the partial execution of the contract, 
 and become the proprietor of the thing sold, cannot treat the failure of the 
 warranty as a condition broken (unless there is a special stipulation to 
 that effect in the contract; see Banner man v. Wliite''); but must have 
 recourse to an action for damages in respect of the breach of warranty. 
 But in cases where the thing sold is not specific, and the property has not 
 passed by the sale, the vendee may refuse to receive the thing proflered to 
 him in performance of the contract, on the ground that it does not. 
 correspond with the descriptive statement, or in other words, that the 
 condition expressed in the contract has not been performed. Still, if he 
 receives the thing sold, and has the enjoyment of it, he cannot afterwards 
 treat the descriptive statement as a condition, but only as an agreement, 
 for a breach of which he may bring an action to recover damages. 
 
 In the present case, as the defendant has not received any benefit or 
 advantage under the contract, but has wholly repudiated it, the question 
 is simply whether, in the true construction of the charter-party, the Court 
 ouglit to infer tliat the statement as to the ship's being at that date in the 
 port of Amsterdam was meant to be a substantive part of the contract, or 
 a representation collateral to it. And this question appears to be properly 
 raised by the averment in the plea that time and the situation of the 
 vessel were essential and material parts of the contract. On the trial of 
 the issue joined thereon, it was no part of the Judge's duty to leave to the 
 jury any question as to the construction of the contract, or the materiality 
 of any of its statements. It was his function to construe the contract with 
 tlie aid of the surrounding circumstances found by the jury, and to decide 
 
 ' 6 Exch. 424—441. a g £5;^, 709_71G. » 1 H. Bl. 273, note (n). 
 
 * VA Q. B. 632. 5 10 C. B. (x.s.l 844.
 
 SECT, ll] BERN V. RURNESS. 517 
 
 for himself whether the statement that the ship was in the port, supposing 
 it to be untrue, was an essential part of the contract, or a mere representa- 
 tion, and to direct the jury to find for the defendant or plaintiff accordingly. 
 The question, it should seem, might also be raised by pleading the material 
 circumstances (as was done in Graves v. Legg^) on which the defendant 
 relies as leading to the construction which the plea seeks to put on the 
 instrument. Unless one or other of tliese modes of pleading were adopted, 
 the Court, in case there should be a demurrer to the plea, or on an application 
 for judgment non obstante veredicto, would be precluded from taking the 
 surrounding circumstances into consideration in aid of the construction. 
 
 It is plain that the Court must be influenced in the construction, not 
 only by the language of the instrument, but also by the circumstances 
 under which and tlie purposes for which, the charter-party was entered 
 into. For instance, if it was made in tlie time of war, the national 
 character of the vessel is of such importance, that a statement of it in the 
 charter-party might properly be regarded as part of the shipowner's 
 contract, and so amounting to a warranty ; whereas, the very same state- 
 ment in the time of peace, being wholly unimportant, might well be 
 construed to be a mere representation. So if it were shewn that the 
 charter-party was made for a purpose such that, unless the vessel began 
 her voyage from the port of loading with her cargo on board by a certain 
 time, it was manifest tliat the object of the charter-party would in all 
 probability be frustrated, the Court might propei'ly be led by this circum- 
 stance to conclude that a statement as to the locality of the ship, coupled 
 with a stipulation that she should sail witli all convenient speed, was a 
 warranty of her then locality. But we feel a difiiculty in acceding to the 
 suggestion which appears to have been, to some extent, sanctioned by high 
 authority (see Dimech v. Corlett'), that a statement of this kind in a 
 charter-party, which may be regarded as a mere representation if the 
 object of the charter-party be still practicable, may be construed as a 
 warranty if that object turns out to be frustrated ; because the instrument, 
 it should seem, ought to be construed with reference to the intention of tlie 
 parties at the time it was made, irrespective of the events which may 
 afterwards occur. It is true that in some of the cases, where the question 
 has been whether a stipulation in a charter-party amounted to a condition, 
 the Court decided that question in the negative, and in so doing took 
 occasion to suggest that neglect or delay on the part of the sliipowner to 
 execute his part of the contract might be a breach of such an essential 
 stipulation on his part as to justify the charterer in treating the contract 
 as brought to an end thereby, and in refusing on that account to perform 
 his part of it, and further suggested that, in deciding whether the breacli on 
 the shipowner's part was of sucli an essential stipulation as that described, 
 the Court might advert to the fact whether such breach iiad frustrated the 
 whole object which the charterer had in view (see Freeman v. I'aylor'; 
 1 y Exch. 709. •■' 1-2 Moo. P. C. C. IIJ'J. ■' 8 Biiig. 124.
 
 518 BEHN V. BURNESS. [CHAl>. V 
 
 Tarrubochia v. Ilichie'; Dimech v. CorleU'). But the Court did not, we 
 apprehend, mean to intimate that the frustration of the voyage would 
 convert a stipulation into a condition, if it were not originally intended to 
 be one. 
 
 The question on the present charter-party is confined to tlie statement 
 of a definite fact — the place of the ship at the date of tlie contract. Now 
 the place of the ship at the date of the contract, where tlie ship is in 
 foreign jiarts and is chartered to come to England, may be the only datum 
 on which the charterer can found his calculations of the time of the ship's 
 arriving at the port of loading. A statement is more or less important in 
 proportion as the object of the contract more or less depends upon it. For 
 most charters, considering winds, markets and dependent contracts, the 
 time of a ship's arrival to load is an essential fact, for the interest of the 
 charterer. In the ordinary course of charters in general it would be so : 
 the e\"idence for the defendant shews it to be actually so in this case. 
 Then, if the statement of tlie place of the ship is a substantive part of the 
 contract, it seems to us that we ought to hold it to be a condition upon the 
 principles above explained, unless we can find in the contract itself or the 
 surrounding circumstances reason for thinking that the parties did not so 
 intend. If it was a condition and not performed, it follows that the obli- 
 gation of the charterer dependent thereon, ceased at his option and 
 considerations either of the damage to him or of proximity to performance 
 on the part of shipo\viier are irrelevant. So was the decision of Glalwlm 
 V. Uays^, where the stipulation in a charter of a ship to load at Trieste 
 was that she should sail from England on or before the -Ith February, and 
 the nonperformance of this condition released the charterer, notwithstand- 
 ing the reasons alleged in order to justify the nonperformance. So, in 
 OUive V. Booker*, the statement in the charter of a ship which was to load 
 at Marseilles was that she was "now at sea, having sailed three weeks 
 ago," and it was held to be a condition for the reasons above stated. And 
 we would note that the marginal abstract of this case states the stipulation 
 to have been "having sailed three weeks ago or thereabouts." If the 
 statement had really been so indefinite, it may be that the Court would 
 have come to a different conclusion. 
 
 We think these cases well decided, and tliat they govern the present 
 case. We tliink that the decision of Dimech v. CorleM" does not conflict 
 with them ; because it is immersed in the specific facts there set out, so as 
 to be a precedent only for cases with very analogous specific facts. The 
 statement in that charter, that the ship was "now at anchor in this port'' 
 (Malta), did not avail to release the charterer, because the ship was in the 
 port in the dry dock; and, although the statement of the fact that she 
 was at anchor in the port was definite, and indicated that she was ready 
 for sea, while in truth she was in a dry dock being built and was not 
 
 > 1 H. & N. 18.3. "- 12 Moo. P. C. C. 199, 224, 227. •' 2 M. & G. 2J7. 
 
 ■* 1 Exch. 416. 3 12 JIoo. I'. C. C. I'J'.t.
 
 SECT. II] GLAHOLM V. HAYS, IRVINE, AND ANDERSON. .519 
 
 completed for a month, yet, as the defendant was at Malta, and was 
 presumed to have known the state of the sliip, and also to liave known of 
 the delay, and did not insist that the charter-party was broken, but allowed 
 the ship to sail from Malta for Alexandria without objection, his defence 
 on this point failed. 
 
 The Court below in a manner referred the present case to a Court of 
 error to say whether the decision should be governed by Ollive v. Booker ' 
 or Dhnech v. Corlett'. We are of opinion, for the reasons assigned, that the 
 decision of Ollive v. Booker^ was sound, and that it governs our decision 
 here ; and we are further of opinion that, in so holding, we do not at all 
 conflict with the decision in Dimech v. Corlett, as above explained. 
 
 On these grounds we think that the judgment of the Queen's Bench 
 sliould be reversed. 
 
 Judgment reversed. 
 
 GLAHOLM V. HAYS, IRVINE, and ANDERSON. 
 In the Common Ple.\s, Hilary Term, 1841. 
 
 [Reported in 2 Manning tC Granger, 257.] 
 
 Assumpsit, upon a memorandum of cliarter of the Pomona, Smith, 
 master, whereby it was agreed that the ship, being tight, staunch, and 
 strong, and every way fitted for the voyage, sliould, having liberty to load 
 a cargo of coals out, either to Venice or Trieste, or both those ports, 
 proceed to Trieste, and there load a complete and full cargo of wheat or 
 other lawful mercliandize, the merchants finding mats for dunnage, if 
 required, if the vessel should load coals on tlie ship's account ; the cargo 
 to be addressed to the charterer's agents, wliieli the merchants bound 
 themselves to sliip, not exceeding what the said vessel could reasonably 
 stow and carry over and above lier tackle, apparel, provisions, and furni- 
 ture ; and that the said vessel being so loaded, should tlierewith proceed 
 to a good and safe port in the United Kingdom, calling at Cork or 
 Falmouth for orders, or so near thereunto as she might safely get, and 
 deliver the same, on being paid freight at and after tlie rate of 9»-. per 
 quarter for wheat, with 10 per cent, thereon for primage, and other goods 
 in fair proportion thereto, restraints of princes and rulers during the said 
 voyage always excepted : That the cargo should be sent alongside and 
 taken from alongside the said vessel at the expense and risk of the said 
 freighters : Tliat the freight should be paid on unloading and right delivery 
 
 1 1 Exch. 416. - 12 Moo. Moo. P. C. C. 199.
 
 520 GLAHOLM V. HAYS. [CHAP. V 
 
 of tlie cargo, one lialf in casli, and the remainder by approved bill at 
 two months' date : That forty running days should be allowed the said 
 merchants, if the ship were not sooner dispatched, for loading the said 
 ship at Trieste and unloading at her port of discharge, and twelve days on 
 demurrage over and above the said laying days, at 6/. per day : The vessel 
 to saO from England on or before the 4th of February then next : That 
 the vessel should be addressed to the charterer's agents at the ports of 
 loading and discharge : That the cash for the ship's disbursements should 
 be advanced free of interest or commission: And that the penalty for 
 the nonperformance of the said agreement should be 800?. Mutual 
 promises, and general allegation of performance. Breach : that no agent, 
 or other person on behalf of the defendants, for the loading of the said 
 vessel could be found by the said master, nor had any such agent or other 
 person been appointed by the defendants : and further, that the defendant 
 did not, nor would, within the number of days in the charter-party 
 mentioned in that behalf, nor did nor would any other person or persons 
 on the behalf of the defendants, witiiin the said last-mentioned number of 
 days, load the said vessel with a full and complete cargo of wheat or other 
 lawful merchandize, according to the tenor and effect of the said charter- 
 party, and of their promise and undertaking ; but, on the contrary thereof, 
 wholly neglected and refused to load the said vessel with any cargo or 
 merchandize whatsoever : and the plaintiff further saith, that by reason of 
 the premises, the said vessel was detained for a long space of time, to wit, 
 for the space of twenty days after the said lay days and days of demurrage 
 in the said charter-party mentioned, whilst the said master was endeavour- 
 ing to procure another cargo ; and that by reason of the said defendants' 
 not having been ready to load the said ship, and not having appointed or 
 provided any agent or other person for the loading of the said vessel, the 
 plaintiff was put to great charges and expenses, amounting, to wit, to the 
 sum of 100/., in and aljout inquiring and advertising for the said agents : 
 and the plaintiff further saith, that by reason of the defendants' not 
 having provided any cargo or merchandize whatsoever as aforesaid, the 
 plaintifl' not only lost and was deprived of all the profit and advantage 
 which he might and otherwise would have made by the freight and 
 primage of the said cargo so agreed to be loaded by the defendants as 
 aforesaid, amounting to a large sum of money, to wit, the sum of 2000?. ; 
 but was also put to great charges and expense, amounting to a large sum 
 of money, to wit, the sum of 1000?., in and about the master of the said 
 vessel endeavouring to procure, and procuring, another freight in the stead 
 of the said freight so agreed to be provided by the defendants as aforesaid : 
 and the plaintiff further saith, that by reason of the premi.ses, and by 
 reason of freights having fallen in value between the arrival of the said 
 ship and the expiration of the said lay days, the freight so provided by 
 the said master as aforesaid was of much less value, to wit, 450?. less 
 value tlian the freight so agreed to be provided l>y the defendants as afore-
 
 SECT. Il] GLAHOLM V. HAYS. 521 
 
 said; and tliat by reason of the premises the plaintift' had been put to 
 great expense, and sustained great loss and inconvenience. 
 
 The defendants pleaded, inter alia, that although the .said vessel was 
 required by the said charter-party to sail from England on or before 
 the 4th day of February next after tiie making of the said charter- 
 party, yet the said vessel did not sail from England on or before the said 
 4th day of February ; but, on the contrary thereof, the said vessel 
 remained and continued in England, without the leave or licence, and 
 against the will, of the defendants, for a long time after the said 4th day 
 of February, to wit, until and upon the 22nd day of February in the year 
 aforesaid. AVhereupon the defendants then refused to perform and 
 fulfil the said charter-party, as they lawfully might do, for the cause afore- 
 said. Verification. 
 
 Replication, that the said vessel, during the time she remained in 
 England after the said 4th day of February, as m the last plea mentioned, 
 was detained by contrary winds, and that the said vessel did not remain in 
 England after the elapsing of the time during which the vessel was so 
 detained as aforesaid ; and the plaintifl' further saith that the expiration 
 of the said time at which the said vessel set sail was before any refusal by 
 tlie defendants to fulfil or perform the charter-party, and as soon after 
 the said 4th day of February in the last plea mentioned as was practicable 
 in that behalf ; and that the time which elapsed after the said 4th day of 
 February, and before the sailing of the said vessel as in the said last plea 
 mentioned, did not hinder the said vessel from proceeding to and arriving 
 at Trieste within a reasonable time in that behalf, but that the said vessel 
 proceeded on her said voyage with such dispatch as to arrive at Trieste 
 within a reasonable time after the said 4th day of February as is in the 
 declaration in that behalf mentioned, and before other vessels which had 
 sailed from England before the said 4th day of February ; without this 
 that the time which elapsed after the 4th day of February, before the 
 sailing of the said vessel from England, was a long and unreasonable time, 
 in manner and form as in the last plea in that behalf alleged ; concluding 
 to the country. 
 
 Special demurrer, shewing for cause, — that inasmuch as the replication 
 professes to contain a special traverse, the inducement thereof ought to 
 have contained, and to have constituted, a sufficient answer, in substance, 
 to the said last plea ; yet, that in fact it contains and constitutes no such 
 answer, inasmuch as the detention of the said vessel by contrary winds 
 was not provided for or admitted by the said charter-party as an excuse 
 for the nonperformance of the said charter-party by the said plaintiff ; 
 nor is it material to the merits of this suit, whether the said vessel arrived 
 at Trieste within a reasonable time after such detention, or whether the 
 said vessel arrived at Trieste before or after any other vessels which had 
 sailed from England before the said 4th day of February ; and also that 
 the said replication is further defective in this, that the conclusion thereof
 
 522 GLAHOLM V. HAYS. [CHAP. V 
 
 contains no direct or formal traverse or denial of any material allegation 
 contained in the said last plea ; and also that the said replication is 
 further defective in this, that the inducement thereof amounts to a 
 pleading in confession and avoidance of the said last plea, inasmuch as it 
 admits the allegation contained in the said last plea, to wit, that the 
 said vessel did not sail from England on or before the said 4th day of 
 February, and attempts to avoid the same by affirming that the said ship 
 ■was detained by contrary winds ; and also that the said replication is 
 furtlier defective in tliis, that it attempts to put in issue a matter wholly 
 immaterial and irrelevant to the merits of the cause, inasmuch as the 
 terms of the said charter-party in the said declaration mentioned provided 
 absolutely that the said vessel should sail from England on or before the 
 said -tth day of February next after the making thereof, and such sailing 
 thereof was made a condition precedent to the performance of the said 
 charter-party by the said defendants, for the fultilment of which the said 
 plaintiff bound himself absolutely, and made the same the essence of the 
 contract -with the said defendants ; and also that the said replication is 
 furtlier defective in this, that it does not in any manner traverse, or 
 confess and avoid, any of the material allegations contained in the said 
 last plea. And also that the said replication is uncertain, inasmuch as it 
 does not appear thereby what it is intended to answer, or how it is 
 applicaljle to the said last plea, or what connection the arrival of the said 
 vessel at Trieste mthin a reasonable time after its detention by contrary 
 winds, or its arrival at Trieste before other vessels, has with the merits of 
 this cause, or with the due fulfilment of the said charter-party as made 
 and set forth by the said plaintiS' : And also that the said replication 
 is further defective in this, that it traverses, and attempts to put 
 in issue, a matter not alleged in the plea which it professes to answer, 
 ina.smuch as it is not alleged in the said last plea that the time which 
 elapsed after the 4th day of Februarj', before the sailing of the said vessel 
 from England, was a long and unreasonable time ; and the said re- 
 plication, by reason thereof, contains no traverse of, and has no reference 
 to, the said plea. 
 
 Shee, Serjt., in support of the demurrer. The replication is admitted 
 to be bad. The court will therefore have to decide upon the validity of 
 the plea ; wliich depends on the question, whether the engagement on 
 the part of the plaintift", that the vessel should sail from England on or 
 before the 4th of February, is to be considered as a condition precedent. 
 [TiNDAL, C. J. Suppose the wind was directly contrary.] In Shadforth v. 
 lliijijin ' the freighter had engaged to provide a cargo at a port in Jamaica, 
 in time for the July convoy, " provided she arrived out and was ready by 
 the 25th of June." It was held by Lord Ellenborough, C. J., that the 
 arrival of the vessel by the 2.5th of June, was a condition precedent to 
 
 1 3 Campb. 385. Scd ciilc Deffell v. Erocklebank, 4 Price, 42, 43.
 
 SECT. Il] GLAHOLM V. HAYS. 523 
 
 the obligation to provide any cargo. In ^huhrick v. SalnwncV, the 
 defendant covenanted that the vessel should proceed from the port of 
 discharge in Madeira, to Wynyard, in South Carolina, directly as wind 
 and weather would permit after the discharge of the outward cargo. The 
 charter-party contained a clause releasing tlie plaintiff from the obligation 
 to provide a cargo at Wynyard, in case the ship should not arrive there by 
 the 4th of Marcli. Tlie declaration assigned a breach in not arriving 
 at Wynyard on the 4tli of March, or at any time afterwards ; to whicli 
 the defendant pleaded, that it was impossible, after the discharge of the 
 cargo, to arriv-e at Wynyard by the ith of March. It was held, upon 
 demurrer to this plea, that, the defendant's engagement that the ship 
 should proceed to Wynyard was an absolute engagement. In Granger v. 
 Bent'-, upon a proviso in a charter-party, that if the ship did not arrive 
 at her port of loading on or before a certain day, unless prevented by 
 stress of weather or other unavoidable impediments, the freighter should 
 not be obliged to provide a cargo ; it was held, that if ordinary diligence 
 were used to reach the port of loading, the case was within the exception, 
 though the causes by which the ship was detained might, by extraoidinary 
 exertion, have been overcome. There, unless the arrival of tlie ship 
 before the particular day had been held to be a condition precedent, it 
 would have been unnecessary to consider whether the case fell within the 
 exception. [Maule, J. In Granger v. Beyit the verdict for the defendant 
 would liave been wrong, supposing the stipulation not to amount to a con- 
 dition precedent. Soames v. Lonergan', Stavers v. Curling*, M'Andrew 
 V. Adams^, Ritchie v. Atkinson'^, Havelock v. Geddes'', Davidson v. Gwynne", 
 all shew that this is a condition precedent. [Maule, J. It will be said that 
 if the sailing on the 4th of February is a condition precedent in tliis case, 
 the sailing within a reasonable time would also have been held to be a con- 
 dition precedent. There is a difficulty in saying that one is to be a con- 
 dition precedent and not the other.] 
 
 Bompas, Serjt., contra. No authority has been adduced whicli proves 
 tliis to be a condition precedent. All the cases cited shew that it is not. 
 None of the stipulations which precede and follow the clause in question 
 can be contended to create a condition precedent. In Shadforth v. Uiggins 
 the terms of the proviso made it a condition pi'ecedent. Soames v. Lonergan 
 and Slmbrick v. Salmond are in favour of the plaintiff. The leading case 
 upon this point is Constable v. Clohrrie^, where it was held, that a breach 
 of the covenant to sail ■nath the first wind was no answer to an action for 
 freight. This principle was acted upon in Boone v. Eyre^°, and in Freeman 
 
 1 3 Burr. 1G37. " Moo. & Malk. 475 ; Lloyd & Welsby, 270. 
 
 ■> 2 B. & C. 564; 4 D. & E. 74; Abbott, Law of Shipping, 5th ed. l'J5, 6th ed. 250. 
 ■• 3 New Ca. 355. ^ i jjew Ca. 29. « 10 East, 295. 
 
 " 10 East, 555. » 12 East, 381. 
 
 •■> Palmer, 397; 2 M. i- Gr. 18; and see 1 Wms. Sauud. 320 b. 
 !>' 1 H. Bla. 273, n ; 2 W. Bla. 1312.
 
 524 GLAHOLM V. HAYS. [CHAP. V 
 
 V. Tayhr\ Bommann v. Tooke°. In Hall v. Cazenove" the opinion of the 
 iucl"es is directly in point: Ritchie v. Atkinson, Davidson v. Gvi/iine. 
 The clause requiring the vessel to be ready to sail on a certain day is 
 introduced for the benefit of tlie shipper. So in Fothergill v. Walton*, 
 •where the ship-o^v-ner covenanted with the freighter to take on board six 
 pipes of brandy at Havre de Grace, and to proceed to Terceira, and there 
 take on board a complete cargo of fruit; it was held tliat, though this 
 amounted to a covenant on the part of the freighter to ship the brandy at 
 Havre, yet that such engagement did not create a condition precedent. 
 A covenant is not a condition precedent because it is prior in point of 
 time to other stipulations. In Slavers v. Cicrling it was laid down very 
 stronf'ly by the court that the terms must be precise to create a condition 
 precedent. 
 
 Shee, Serjt., in reply. The owner is not bound to wait from day to 
 day, and look to his remedy by action against the freighter. The authori- 
 ties cited for the plaintiff are all cases in which the parties had put their 
 own construction upon the agreement. [Tindal, C. J. That observation 
 can hardly apply to those cases in which the agreement was by deed. 
 Davidson v. Gwijnne.'\ This is not a case of a deed. In Abbott on 
 Shipping* it is said, " If either party is not ready at the time appointed 
 for the loading of the ship, the other may seek another ship or cargo, and 
 bring an action to recover the damages he has sustained." 
 
 C^ir. adv. vult. 
 
 Tindal, C. J., now delivered the judgment of the Court. 
 
 The question raised upon this record is, whether the clause contained 
 in the charter-party, set out in the declaration, viz., "the vessel to sail 
 from England on or before the 4th day of February next," is a condition 
 precedent on the part of the ship-owner, upon the non-compliance therewith 
 on his part, the defendants, the freighters, were at liberty to throw up the 
 charter. The defendants in their plea have treated the clause as importing 
 a condition ; alleging in such plea that the vessel " did not sail from 
 England on or before the said 4tli day of February, but on the contrary 
 remained and continued in England, without the leave and against the will 
 of the defendants, for a long time after ; whereupon the defendants refused 
 to perform and fulfil the said charter-party, as they lawfully might;" and 
 the plaintiff having demurred to this plea, the question on the legal con- 
 struction of the charter-party is thereby raised. 
 
 Whether a particular clause in a charter-party shall be held to be 
 a condition, upon the nonperformance of which by the one party, the 
 other is at liberty to abandon the contract, and consider it at an end ; or 
 whether it amounts to an agreement only, the breach whereof is to be 
 recompensed by an action for damages, must depend upon the intention of 
 
 1 8 Biugh. 124; 1 M. & Scott, 182. » 1 Campb. 377. ^ 4 East, 476. 
 
 < 8 Taunt. 576; 2 B. Moore, 630. » 5th ed. 179, 6th ed. 232.
 
 SECT. Il] GLAHOLM V. HAYS. 523 
 
 the parties to be collected, in each particular case, from the terms of the 
 agreement itself, and from the subject-matter to which it relates'. "It 
 cannot depend," as Lord EUenborougli observes, "on any formal arrange- 
 ment of the words, but (must depend) on the reason and sense of the 
 thing as it is to be collected from tlie whole contract." See Ritchie v. 
 Anderson". And, looking, in the first place, at the terms of this agree- 
 ment, we think some distinction must have been intended by the contract- 
 ing parties, between this particular clause and those which precede and 
 follow it, as to the nature of the obligations thereby respectively created. 
 All the clauses of the charter-party, both prior and subsequent to the 
 clause in dispute, are framed strictly and properly in the language of 
 agreement only. The charter-party states, "it is mutually agreed between 
 the parties, that the ship being tight, ifec, shall proceed to Trieste, and 
 there load a complete cargo ; that the said vessel being so loaded shall 
 therewith proceed to a good and safe port in the United Kingdom ; that 
 the cargo shall be sent alongside ; that the freight shall be paid in the 
 manner therein stipulated ; that forty running days shall be allowed the 
 merchants." And then is interposed the clause now under discussion, viz., 
 " the vessel to sail from England oh or before the 4th day of February 
 next." After which the charter-party continues in the same frame as 
 before : That the vessel shall be addressed to the charterer's agents, &c. 
 Referring, therefore, in the lirst place, to the variation between the 
 language of the particular clause, and that of the clauses amongst which it 
 is found, there is reasonable ground for surmising, that some distinction 
 must have been intended between them ; and no other distinction can 
 exist, except that the one set of clauses sounds in agreement, and the other 
 clause in condition. 
 
 The very words themselves, "to sail on or before a given day," do, by 
 common usage, import the same as the words "conditioned to sail," or 
 "warranted to sail on or before such a day;" and undoubtedly, if in the 
 middle of a common bought and sold note for a cargo of corn, or any other 
 goods, were found the words, "to be delivered on or before such a day," 
 they would be held to amount to a condition ; and the purchaser would 
 not be bound to accept the cargo, if not ready for delivery by the day 
 appointed. 
 
 And looking at the subject-matter of the contract, without regarding 
 the precise words, we think that construing the words as a condition 
 precedent, will carry into effect the intention of the parties with more 
 certainty than holding them to be matter of contract only, and merely the 
 ground of an action for damages. 
 
 Both parties were aware that the whole success of a mercantile 
 
 adventure does, in ordinary cases, depend upon the commencement of the 
 
 voyage by a given time. The nature of the commodity to be imported, 
 
 the state of the foreign and home market at the time the contract of 
 
 1 And see 1 M. & Gr. 851. '- 10 East, 295.
 
 526 GLAHOLM V. HAYS. [CHAP. V 
 
 charter-party is made, and the various other calculations which enter into 
 commercial speculations, all combine to shew that despatch and certainty 
 are of the very first importance to their success ; and certainly nothing will 
 so effectually insure both despatch and certainty, as the knowledge that 
 the obligation of the contract itself shall be made to depend upon the 
 actual performance of the stipulation which relates to them. 
 
 The present case appears to us to be distinguishable from those cited 
 on tiie part of the plaintiff, in both the particulars to which we have 
 adverted, viz., that in this case the form of the stipulation is more nearly 
 in the language of condition than in that of agreement, whilst in the cases 
 cited the stipulation is in the language of covenant only ; and again, that 
 in this case the performance of the stipulation goes more to the very root 
 and the whole consideration of the contract. And indeed in most or all 
 of those cases the objection has not been taken until after the voyage had 
 been performed, nor in many cases until after the goods had been accepted ; 
 so that it is manifest, the breacli of the agreement of which the defendant 
 complained, and which he sought to set up as the nonperformance of 
 a condition precedent, could not go to the whole of the consideration of 
 the contract. 
 
 Such was the case of Constable v. Cloberie\ where the ship-owner 
 covenanted, that his ship should sail with the first fair wind ; the case of 
 Bornmann v. Tooke', where the covenant was that the ship should sail 
 with the fii'st favourable wind ; and the defence in each was set up against 
 a demand for the freight, after the ship had performed her voyage and the 
 merchant had accepted the cargo. So likewise in Davidson v. Gtcynne^, 
 the covenant to sail with the first convoy was held not to be a condition 
 precedent, the voyage being in fact performed ; and so of the rest. 
 
 Upon the whole, therefore, we think the intention of the parties to this 
 contract sufficiently appears to have been, to insure the ship's sailing at 
 latest by the 4th of February, and that the only mode of effecting this is 
 by holding the clause in question to form a condition precedent, which we 
 consider it to have been. 
 
 Judgment for the defendant. • 
 
 1 Palmer, 307; Noy, 75; Abbott, L. S. 191; 2 M. & Gr. 18. 
 = 1 Campb. 377. ' yi East, 381.
 
 SECT. Il] TARRABOCHIA V. HICKIE. 527 
 
 TARRABOCHIA v. HICKIE. 
 In the Exchequee, May 30, 1856. 
 
 IBeported in 1 Hiirlstone it Norman, 183.] 
 
 The declaration stated, tliat the plaintifl' and defendant agreed by 
 charter-party that the plaintiff's ship, called tlie "Dominica," then lying at 
 Fiume, being tight, staunch, and strong, and every way fitted for the 
 voyage, should with all convenient speed sail and proceed to Cardiff, and 
 tliere load from the factors of the defendants a full and complete cargo of 
 coals in the customary manner, to be loaded in twenty days from the day 
 on which the vessel was ready to load, which the defendants bound them- 
 selves to ship, and being so loaded should therewith proceed to Malta, 
 Corfu, Smyrna, Athens, Alexandria, Constantinople, orGallipoli, as ordered 
 on signing bills of lading, or as near thereunto as she might safely get, and 
 there deliver tlie same into craft alongside steamer or depot sliip tliei'e, as 
 might be directed by the con.signee, being paid freight on the quantity 
 delivered at tlie rate of 4:2s. Gd. per ton of twenty cwt. delivered, ifec, and 
 being in full of all port charges and pilotages, (tlie act of God, the Queen's 
 enemies, fire, and all and every otlier dangers and accidents of the seas, 
 rivers, and navigation of whatever nature or kind soever during the said 
 voyage always excepted), the freight to be paid on the right and true 
 delivery of the cargo in cash at the current rate of exchange, &c. 
 Averment : that the plaintiti" did all things necessary on his part to entitle 
 liim to have the agreed cargo loaded on board the said ship at Cardiff, and 
 tliat tlie time for so doing has elapsed. Breacli. That the defendants 
 made default in loading the agreed cargo. 
 
 Pleas. First, that the plaintiflf's ship was not tight, staunch, or strong, 
 or fitted for the voyage in the charter-party in that behalf mentioned, as 
 she was required to be by the said charter-party, insomuch, tliat by reason 
 thereof tlie object of the said charter-party, and of tlie voyage therein- 
 mentioned, was wholly frustrated, and the defendants were prevented 
 from deriving, and did not derive any benefit therefrom. 
 
 Secondly. That the said ship did not with convenient speed, or in a 
 reasonable time in that behalf, sail or proceed to Cardifi' as required by the 
 said charter-party, insomuch that by reason thereof the object of the said 
 charter-party, and of tlie voyage therein-mentioned, was wholly frustrated, 
 and the defendants were prevented from deriving, and did not derive any 
 benefit therefrom. 
 
 Replication. The plaintiS' joins issue upon both the defendant's pleas. 
 
 At the trial, before Cresswell, J., at the last Gloucester assizes, it 
 appeared that the charty-pai-ty was entered into on the 22nd April, 18.54. 
 On the 29th of the same month, the vessel not lieing then ready to sail, an
 
 528 TARRABOCHIA V. HICKIE. [CHAP. V 
 
 accident occurred while tightening the rigging, which rendered it necessary 
 to have a new topmast, and the sailing of the vessel was in consequence 
 delayed. On the 15th of May, the vessel being then about to sail, fouled 
 her cable, whereby she was delayed until the 1 9th. On that day she sailed 
 from Fiunie ; and, on the 20th, was compelled by stress of weather, to 
 enter the harbour of Sossino. She remained there until the 2Gth, when 
 she proceeded on her voyage; and on the 16th of August arrived at 
 Carditi". The defendant then refused to load. 
 
 The learned Judge left it to the jury to say, whether the vessel was 
 tin-ht staunch, and strong when she sailed from Fiume ; and if not, 
 whether the object of the voyage was thereby frustrated; also, whether 
 the vessel sailed and proceeded to Cardiff witli convenient speed or in a 
 reasonable time ; and if not, whether the object of the voyage was thereby 
 frustrated. The jury found that the vessel was not tight, staunch, or 
 strong wlien she sailed from Fiume, but that she was so when she arrived 
 at Cardiff; and that the object of the voyage was not thereby frustrated. 
 The jury also found, that the vessel did not with all convenient speed, or 
 in a reasonable time, sail and proceed to Cardiff, but that the object of the 
 voyage was not thereliy frustrated. A verdict was then entered for the 
 defendant, leave being reserved to the plaintiff' to move to enter a verdict 
 for him. 
 
 Keating, in the following term, obtained a rule nisi accordingly, against 
 which 
 
 Whately and Huddhston now shewed cause. The stipulations in the 
 charter-party that the vessel, being tight, staunch and strong, shall sail 
 with convenient speed and within a reasonable time, are conditions 
 precedent to the plaintiff's right to enforce the contract. In Glahohn v. 
 Haijs^ the charter-party provided that the vessel should proceed to Trieste, 
 and there load a full cargo, "the vessel to sail from England on or before 
 the 4th of February next;" and that was held to be a condition precedent 
 on the part of the owner, upon the noncompliance wherewith the freighters 
 were at liberty to throw up the charter. Tindal, C.J., in delivering the 
 judgment of the Court, said, " The very words themselves ' to sail on or 
 before a given day,' do by common usage import the same as the words 
 ' conditioned to sail,' or ' warranted to sail on or before such a day. ' " So 
 in Ollive v. Booker', where the vessel was described in the charter-pai-ty as 
 "now at sea, having sailed three weeks ago," that was held to amount to a 
 warranty. In like manner the statement that the vessel is tight, staunch 
 and strong, is a warranty that she «fulfils that description. In Oliver v. 
 Fiddun^, the stipulation was tliat the vessel should be "I'eady to receive 
 cargo in all May," and that was held a condition precedent. Cranston v. 
 Marshall* is also an authority that a statement as to the time at which a 
 vessel will sail is not a mere representation, but a warranty. In Clipsham 
 
 1 2 Man. & G. 2i57. = 1 Exch. 416. » 4 Exch. 135. * o Exch. 395.
 
 SECT. Il] TARRABOCHU V. HICKIE. 529 
 
 V. Vertiie' there was no stipulation that the vessel should proceed in any 
 pai'ticular time ; and where no time is specified the law implies a 
 reasonable time. — They also referred to Ellen v. To]jp'. 
 
 Keating and Phipeon appeared in support of the rule, but were not called 
 upon to argue. 
 
 Pollock, C. B. The rule must be absolute. Tlie first plea alleges that 
 the vessel was not tight, stauncli, or strong, and that by " reason thereof 
 the object of the charter-party and of the voyage was wholly frustrated." 
 The latter is a material allegation, and the jury have found it in the 
 negative. The question then is, whether the fact of the vessel not being 
 tight, staunch, or strong, is a condition precedent to the performance by 
 the defendant of his contract. I think not. In like manner, it is not a 
 condition precedent that the vessel should sail with convenient speed or in 
 a reasonable time. Where, indeed, the charter-party provides that the 
 vessel shall sail on a particular day, that is a condition precedent. The 
 distinction is obvious : where a particular day is named it is evidently the 
 intention of the parties that the vessel shall sail on that day; and if the 
 shipowner refuses to do so the merchant may decline to load, for the 
 voyage is thereby altered, and the success of the adventure may depend on 
 the vessel sailing on tlie day named. In Abbott on Shipping, part 4, c. 1, 
 s. 5, it is said, — " Whether or not a particular covenant by one party be a 
 condition precedent the breach of which will dispense with the performance 
 of the contract by the other, or an independent covenant, is a question to 
 be detei-mined according to the fair intention of the parties, to be collected 
 from the language employed by them. An intention to make any 
 particular stipulation a condition precedent should be clearly and un- 
 amliiguously expressed." There can be no doubt about a particular day ; 
 but what is a " convenient speed" or a " reasonable time " must always be 
 a subject of contention. We may therefore fairly say, that where a 
 particular day is named the time is unambiguously expressed, but where 
 the terms are so lax and ambiguous as to lead to a diilerence of opinion, 
 then the stipulation is not a condition precedent. The general rule laid 
 down by Lord EUenborough in Davidson v. Gwynne' is, "that unless the 
 nonperformance alleged in breach of the contract goes to the whole root 
 and consideration of it, the covenant broken is not to be considered as a 
 condition precedent, but as a distinct covenant, for the breach of which 
 the party injured may be compensated in damages." Applying that rule 
 to this case, the jury have negatived an allegation which is the substance 
 of each plea ; consequently the pleas were not proved, and the rule must 
 be absolute. 
 
 Martin, B. I am of the same opinion. The jury having negatived 
 the allegation that "the object of the charter-party and of the voyage 
 tlierein mentioned was wholly frustrated," that part of the pleas must be 
 > i, Q. B. 205. - G Exch. 121. ^ 12 East, 3S1. 
 
 F. ":5i
 
 530 TARRABOCHIA V. HICKIE. [CHAP. V 
 
 considered as Ktruck out, aiul tlion all that remains is that the sliip -was 
 not tight, staunch or strong, or fitted for the voj-age, and tliat the ship did 
 not sail with convenient speed or in a reasonable time, whicli are mere 
 traverses of those averments in the declaration. For at least twenty years, 
 it has been considered that traverses of such averments are bad in law, as 
 raisin" immaterial issues ; and for the reasons stated by the Lord Chief 
 Baron it is clear that if the latter allegation in the pleas was struck out, 
 they would be bad on demurrer, and that the plaintiff would be entitled to 
 the verdict though the jury found them against him. In the case of Hall 
 V. Cazenove', the charter-party contained a covenant that the ship should 
 sail on or before the 12th February, and Le Blanc, J., said, — "If the 
 defendant sustained any damage by reason of the ship's not having sailed 
 on the particular day, he may recover it by bringing his action on the 
 covenant ; but, at any rate, the objection does not go to the plaintiff's 
 right of action on the ground of a condition precedent." But however 
 that may be, my judgment is founded on this, that the terms used in this 
 charter-party do not amount to a condition precedent. 
 
 Brajiwell, B. I am of the same opinion. No doubt it is competent 
 for the parties, if they think fit, to declare in express terms that any 
 matter shall be a condition precedent, but when they have not so expressed 
 themselves, it is necessary for those who construe the instrument to see 
 whether they intended to do it. Since, however, they could have done it, 
 those who construe the instrument should be chary in doing for them that 
 which they might, but have not done for themselves. If the contract is to 
 load at a particular port, the very language compels us to construe that as 
 a condition precedent. So in the case of Glaholm v. Hays', where the 
 agreement was that the vessel should sail on a particular day. In the 
 present case the only thing which made me doubt was an expression of 
 Maule, J., in Glaholm v. Hnys (which is a dictum rather than an authority). 
 He says in the course of the argument, — "It will be said that if the sailing 
 on the 4th February is a condition precedent, in this case the sailing 
 within a reasonable time would also have been held to be a condition 
 precedent. There is a difficulty in saying that one is to be a condition 
 precedent and not the other." But the case of Freeman v. Taylor' is an 
 express authority that the sailing within a reasonable time is not a condi- 
 tion precedent. 
 
 Bule absolute. 
 1 4 East, 477. = 2 Man. & G. 257. ' 8 Eing. 124.
 
 SECT. II] liANNERMAN V. WHITE. 531 
 
 BANNERMAN v. WHITE and OTHERS. 
 In the Common Pleas, June 12, 18G1. 
 
 [Reported in 10 Comiiioii ISeiich Reports, New Series, 841.] 
 
 This was an action brouglit to recover the sum of 83.50/. 16$., being 
 a moiety of the price of certain hops sold and delivered by the plaintiff to 
 the defendants. 
 
 The defendants pleaded, — first, that the defendants were induced to 
 buy by the false and fraudulent representation of the plaintiif at the time of 
 the sale that no sulphur had been used in the growth of the hops, — secondly, 
 that they did not promise as alleged. 
 
 The cause was tried before Erie, C. J., at tlie last Spring Assizes at 
 Maidstone, when the following facts appeared in evidence : — The plaintiff 
 is a well-known liop-grower in the county of Kent ; the defendants are 
 hop-merchants in London. A few years ago, sulphur had been used to a 
 great extent in the cultivation of hops; and in 1854 tlie Burton brewers, 
 becoming impressed witli a notion that the quality of tlieir beer had 
 become thereby deteriorated, refused to buy any more hops which had 
 been so treated. The hop-merchants thereupon sent a circular round to 
 the growers, giving them notice of this objection, and stating that they 
 would not in future purchase any hops without a guarantee that no sulpliur 
 had been applied to them. With a knowledge of this fact, the plaintifi', in 
 October, 1860, offered the defendants his growth of that year, — the 
 defendants having been the purchasers of the preceding year. Samples 
 were produced in the usual way at the factors in London, and, before the 
 price was mentioned, the defendants inquired of the plaintiff if any 
 sulphur had been used in the treatment of the hops that year. To this 
 the plaintiff, according to the evidence of the defendants' witnesses, 
 answered " No ; " and the defendant White added that he would not even 
 ask the price if any sulphur had been used. The evidence of the plaintiff's 
 witnesses upon this point was, that the plaintiff, when asked if any sulphur 
 had been used, said that "There was no mould this year, and therefore no 
 occasion to use any sulphur : " but they did not recollect hearing the 
 defendant White say that he would not ask the price if any sulphur liad 
 been used. The parties then proceeded to discuss the price ; and ultimately 
 the defendants agreed to buy the hops, the price to be paid, one half on 
 the first of February, the other on the 1st of March following. 
 
 At the time of the purchase, the plaintiff gave the defendants the 
 following guarantee : — " I hereby guarantee Messrs. Wigan, White, and 
 Wigans against any loss by my 1860 hops through the mode of treatment 
 
 34—2
 
 532 BANNERMAN V. WHITE. [CHAP. V 
 
 on tho poles or curing, and hold myself Uable to pay them any damage 
 caused them thereby." 
 
 Tiie hops, which corresponded with the samples, were accordingly sent 
 to tlie defendants' warehouse on the 24th of October, and were weighed on 
 the 2Gth in the presence of the seller and of the buyers,— the amount 
 agreed to between them being 16, 7 OH. 12s. 
 
 The defendants, having subsequently discovered that sulphur had been 
 applied to a portion of the hops, wrote to the plaintiff on the 4th of 
 December repudiating tlie contract. It was proved that sulphur had been 
 used to about five acres of the hops, the whole growtli being three hundred 
 acres, and that the whole of the hops, both sulphured and unsulphured, 
 had been mixed together. It appeared that the plaintiff, having purchased 
 a new machine called a sulphurater, had been desirous of trying it, and so 
 liad used a small portion of sulphur to tlie five acres whilst the hops were 
 under cultivation. This circumstance he had forgotten or had thought 
 unimportant when discussing the teiTiis of the contract with the de- 
 fendants. 
 
 On the part of the defendants, it was submitted that the absence of the 
 use of sulphur was expressly made by them a condition of their entering 
 into the contract. 
 
 For the plaintiff", it was insisted that the affirmation that no sulphur 
 had been used was no part of tlie contract, but a mere representation, not 
 wilfully false, and not amounting to a warranty ; and that, the contract 
 being for the purchase of a specific article, in the absence of a warranty or 
 fraud, the buyers were bound. 
 
 Two questions were left to the jury, — first, whether the plaintiff had 
 wilfully made a false representation at the time of the contract, that no 
 sulphur had been used,^ — secondly, whether the affirmation that no sulphur 
 had been used in the growth of the hops was understood and intended by 
 the parties to be a part of the contract, and a warranty to that effect. 
 
 The jury answered the first question in the negative, and the second in 
 the affirmative : and they assessed the deterioration in market value of the 
 hops by reason of the use of the sulphur at 4000^. 
 
 The learned judge tliereupon directed a verdict to be entered for the 
 defendants, reserving leave to the plaintiff to move to enter it for him for 
 6,350Z. 16s. if the court should be of opinion that the representation above 
 mentioned was no part of the contract. 
 
 Lush, Q.C., in Easter Term last, obtained a rule nisi accordingly, on 
 the ground that the stipulation that no sulphur had been used in the 
 growth of the hops did not amount to a condition that the hops might be 
 rejected if sulphur had been used. He referred to Street v. Blay, 2 B. & 
 Ad. 456, and the notes to Critter v. Potvell, 2 Smith's Leading Cases, 4th 
 edit., 2.3. He also submitted, that it was loo late to repudiate the contract 
 after the property in the hops had passed to the defendants ; and that, at 
 all events, the defendants were not warranted in keeping the hops so long
 
 SECT. Il] BANNERMAN V. WHITE. 533 
 
 as they did before taking the objection. [Erle, C.J. If the question had 
 been put to the jury, they would have found that the repudiation was 
 made within a reasonable time.] 
 
 Bovill, Q.C., Hawkins, Q.C., and lui;/, in Trinity Term, shewed cause. 
 It being a condition of the contract that the hops had not in any way been, 
 treated with sulphur, the defendants were justified, when they discovered 
 that the article delivered to them was not that which they had agreed to 
 buy, in declining to keep it. What tiie defendants contracted to buy was 
 a parcel of unsulphured hops : tliat which was delivered was an article 
 with which the defendants expressly declined to deal. The authorities 
 upon the subject are distinct and clear. In Young v. Cole, 3 N. C. 724, 
 4 Scott, 489, the defendant placed in the hands of the plaintiff certain 
 instruments called Guatemala bonds. The plaintifl' sold them to one B., 
 who paid him the market-price, which he handed over to the defendant. 
 A few days after the sale, B. returned the bonds to the plaintiff, he having 
 discovered that they would not be recognised by the government by whom 
 they purported to have been issued, by reason of their not being stamped. 
 The plaintiff thereupon refunded to B. the sum B. had paid for them. It 
 appeared that Guatemala bonds on the Stock Exchange were understood 
 to mean bonds duly stamped, and that unstamped bonds were utterly 
 worthless. It further appeared that a stock-broker dealing in foreign 
 stocks is treated with as a principal. It was held, that, under these cir- 
 cumstances, the plaintiff was entitled to recover against the defendant as 
 for money paid to his use tiie amount repaid by the former to B. Tindal, 
 C. J., there says : " The money the plaintifl" delivered to the defendant was 
 his own money, he having sold the bonds as a principal to Bryant, and 
 being subject to all the responsibilities of a principal. That money was 
 delivered upon the faith and undei'standing that the bonds the plaintiff had 
 received from the defendant were genuine and available Guatemala bonds, 
 and saleable on the Stock Exchange. It seems, therefore, that the consider- 
 ation on which the money was paid has failed as completely as if the defend- 
 ant had contracted to sell foreign gold coin, and had handed over counters 
 instead. This is not a case of warranty : but the question is, whether the 
 defendant has not delivered something which, though resembling the article 
 contracted to be sold, is of no value. I am of opinion that he has." There, 
 both parties were ignorant, at the time of the contract, that a stamp was 
 necessary, which makes the case much stronger than tjie present. In Daiv- 
 son V. Collis, 10 C. B. 523, 530, Williams, J., refers to that case as taking the 
 distinction (upon which the defendants rely here) between a warranty and a 
 condition. Young v. Cole is again referred to in Gompertz v. Bartlett, 2 Ellis 
 & B. 849. There, an unstamped bill of exchange, indorsed w. blank, pur- 
 porting to be a foreign bill, was sold (without recourse) by the holder, who 
 was not a party to the bill. It proved to have been drawn in this country, 
 and was therefore unavailable for want of a stamp, and could not bo 
 enforced against the parties. The vendor and purchaser at the time of the
 
 534 BANNERMAN V. WHITE. [CHAP. V 
 
 sale were both alike ignorant of this defect. It was lield that tlie purchaser 
 was entitled to recover back the price from the vendor, on the ground that 
 the article sold as a foreign bill did not answer the description by which it 
 was sold, — though it would have been otherwise (the sale being without 
 any warranty, and there being no fraud), had the latent defect been one 
 consistent with the article being a foreign bill. Lord Campbell says : 
 ''Youmj V. Cole is indeed a very strong case; for, the things there sold as 
 Guatemala bonds were in one sense of the words Guatemala bonds ; but 
 they were not what was professed to be sold, viz. bonds binding on the 
 Guatemala government. The case is precisely as if a bar was sold as 
 gold, but was in fact brass, the vendor being innocent. In such a case, 
 tlie purchaser may recover." In Gardiner v. Gray, 4 Campb. 144, it was 
 ruled by Lord Ellenborough, that, where before or at tlie time of sale a 
 specimen of the goods is exhibited to the buyer, if there be a written con- 
 tract which merely describes the goods as of a particular denomination, 
 this is not a sale by sample ; but there is an implied warranty that the 
 goods shall be of a merchantable quality of the denomination mentioned 
 in the contract. In his summing-up, his Lordship said : " This was not a 
 sale by sample. The sample was not produced as a warranty that the 
 bulk corresponded with it, but to enable the purchaser to form a reasonable 
 judgment of the commodity. I am of opinion, however, that, under such 
 circumstances, the purchaser has a right to expect a saleable article 
 answering the description in the contract. Without any particular 
 warranty, tliis is an implied term in every such contract." So, here, the 
 defendants had a riglit to expect hops which had not been sulphured. In 
 the well-known case of Bridge v. Wain, 1 Stark. N. P. C. 504, goods sold 
 were described in the invoice as " scarlet cuttings," and it was held that a 
 warranty was to be inferred that the goods answered the known mercantile 
 description of scarlet cuttings. A warranty is not the less a warranty 
 because it is a condition. [Williams, J. In marine insurances, a warranty 
 is also a condition. Willes, J. So, in the case of a charter-party, in which 
 the vessel was represented to be "now at sea, having sailed three weeks 
 ago :" Ollive v. Booker, 1 Exch. 416, 423, per Parke, B.] So, in the case 
 of life-insurance : Anderson v. Fitzgerald, 4 House of Lords' Cases, 484. 
 The test is, as Parke, B., says in Ollive v. Booker, whether the untruth of 
 the representation goes to defeat the whole object of the contract. In 
 Nicliol V. Godts, 10 Exch. 191, it was held that an agreement for the sale 
 and delivery of oil described as "foreign refined rape-oil warranted only 
 equal to samples," is not complied with by the tender of oil which is not 
 "foreign refined rape-oil," although it be equal to the quality of the 
 samples. "The warranty," says Parke, B., "affects only the quality, but 
 not the nature of tlie article itself." A warranty is a collateral under- 
 taking that the thing sold shall be of a particular quality or description, 
 not part of tlie substance of the contract itself, as the representation here 
 was. [Byles, J. Would not the argument apply to the sale of a horse 1
 
 SECT. II] BANNERMAN V. WHITE. 535 
 
 No man wants to buy an unsound liorse.] The case of a horse depends 
 upon a difl'erent consideration : it is not like the sale of a manufactured 
 article. That distinction is taken in Jones v. Bright, 5 Bingh. 533, 3 M. & 
 P. 155, Brown v. Edgington, 2 M. & G. 279, 2 Scott N. R. 496, and Shepherd 
 V. Fghus, 4 Scott N. R. 434, 3 M. & G. 868. In Chanter w. Hopkins, 4 M. 
 & W. 399, 404, Lord Abinger says : " A good deal of confusion has arisen 
 in many of the cases on this subject, from the unfortunate use made of the 
 word ' warranty.' Two things have been confounded together. A war- 
 ranty is an express or implied statement of something whicli the party 
 undertakes shall be part of a contract ; and, though part of the contract, 
 yet collateral to the express object of it. But, in many of the cases, some 
 of which liave been referred to, the circumstance of a party selling a par- 
 ticular thing by its proper description has been called a warranty, and the 
 breach of such contract a breach of warranty : but it would be better to 
 distinguish such cases as a non-compliance with a contract which a party 
 has engaged to fulfil ; as, if a man offers to buy peas of another, and he 
 sends him beans, he does not perform his contract ; but that is not a 
 warranty : there is no warranty that he should sell him peas ; the contract 
 is to sell peas, and, if he sends him anything else in their stead, it is a non- 
 performance of it." That is precisely this case. In Flitjht v. Booth, 1 N. 
 C. 370, 1 Scott, 190, the particulars of sale of certain leasehold property 
 in Covent Garden stated, that, under the original lease, "no offensive 
 trade was to be carried on, and that the premises could not be let to 
 a coffee-house keeper or working hatter." The original lease, when pro- 
 duced, appeared to prohibit the business of brewer, baker, sugar-baker, 
 vintner, victualler, butcher, tripe-seller, poulterer, cheese-seller, fruiterer, 
 herb-seller, coffee-house keeper, working hatter, and many others, and the 
 sale of coals, potatoes, or any provisions : and it was lield that there was 
 such a material discrepancy between the particulars and the lease as to 
 entitle the purchaser to rescind his contract. In giving judgment, Tindal, 
 C. J., says : " We think it is a safe rule to adopt, that, where the mis- 
 direction, though not proceeding from fraud, is in a material and substantial 
 point, so far affecting the subject-matter of the contract that it may reason- 
 ably be supposed, that, but for such misdescription, the purchaser might 
 never have entered into the contract at all, in such case the contract is 
 avoided altogether, and the purchaser is not bound to resort to the clause 
 of compensation. Under such a state of facts, the purchaser may be con- 
 sidered as not having purchased the thing which was really the subject of 
 the sale ; as in <7o?ies v. Edney, 3 Campb. 285, where the subject-matter of 
 the sale was described to be a ' free public-house,' while the lease contained 
 a proviso that the lessee and his assigns should take all their beer from a 
 particular brewery ; in which case the misdescription was held to be fatal." 
 [Williams, J. In the case of a sale of a lease nothing passes until tiie 
 conveyance is executed ; the objection comes by way of excuse for not 
 completing.] The correspondence with sample and the absence of the
 
 636 BANXERMAN V. WHITE. [cHAP. V 
 
 application of sulphur in the cultivation of the hops, were both conditions. 
 In Street v. Blny, 2 B. &, Acl. 456, the contract was for a specific chattel. 
 FouUo7i V. Lattimore, 9 B. k. C. 259, 4 M. <fc R. 208, Toulmin v. Hedley, 
 2 Car. & K. 157, Lucy v. Mouflet, 5 Hurlst. & N. 229, and Hopkins v. 
 Tanqneray, 15 C. B. 130, were also referred to. 
 
 iM«/i, Q.C., and Bannen, in support of the rule. In the case of a sale 
 of a specific chattel, where tlie property has passed, the buyer cannot after- 
 wards repudiate the contract on the ground tlmt the article does not 
 correspond with the representation or warranty. Here, the defendants 
 bought all the plaintifi''s hops of the growth of 1860, consisting of 449 
 pockets, by a sample drawn from each pocket. The seller could only per- 
 form that contract by delivering the very hops that were grown upon his 
 land. And tlie moment they were inspected, weighed, and delivered, the 
 property in them passed to the buyers. The rule upon this subject is 
 clearly and accurately stated in the notes to Cutter v. Powell, 2 Smith's 
 Leading Cases, 4th edit. 22, 23,—" It is settled by Street v. Blaij, 2 B. & 
 Ad. 456, and Poulton v. Lattimore, 9 B. & C. 249, 4 M. & R. 208, that, 
 where an article is warranted, and the warranty is not complied with, the 
 vendee has three courses, any one of which he may pursue. 1. He may 
 refuse to receive tlie article at all : the power to pursue the first course, 
 however, not extending to cases wliere there has been a warranty upon the 
 sale of a specific chattel, and where, the property passing by the contract, 
 it is not competent to the vendee to rescind it without the consent of the 
 vendor, or a stipulation to that effect. See the observations of tlie judges 
 in the case of Dawson v. Collis, 10 C. B. 523 ; also Parsons v. Sexton, 4 C. 
 B. 899. 2. He may receive it, and bring a cross action for the breach of 
 the warranty. Or, 3. He may, without bringing a cross action, use the 
 breach of warranty in reduction of the damages, in an action brought by 
 the vendor for the price ; i. e. to the extent of the diflerence between the 
 agreed price or alleged value and the real value at the time of delivery as 
 reduced by the breach of contract : but, if there be any further damage 
 besides that so allowed in abatement of the price, he must bring a cross 
 action : Mondel v. Steel, 8 M. & W. 858 : and see Rigge v. Burhidge, 15 M. 
 & W. 598. It was once thought, and indeed laid down by Lord Eldon in 
 Curtis v. Hannay, 3 Esp. N. P. C. 82, that the vendee might, on discover- 
 ing the breach of warranty, rescind the contract, return the chattel, and, 
 if he had paid the price, recover it back. This doctrine, which was opposed 
 to Weston v. Doumes, Dougl. 23, is, however, overruled by Street v. Blay 
 and Gomperiz v. Denton, 1 C. & M. 207, 3 Tyrwh. 232 ; and it is clear, 
 that, though the non-compliance with the warranty may justify liim in re- 
 fusing to receive the chattel, it will not justify him in returning it, and 
 suing to recover back the price ; unless, indeed, he return it, having kept 
 it (as he had a right to do, see Lm-ymer v. Smith, 1 B. & C. 1, 2 D. <fc R. 
 23) such a time only as was necessary for a fair examination, in which case 
 he cannot be considered as having received it at all : sec Okell v. Smith, \
 
 SECT. Il] BANNERMAN V. WHITE. 537 
 
 Stark. N. P. C. 107, Jordan v. ^Wton, 4 M. & W. 155, Street v. Bhi/, 2 B. 
 & Ad. 456, Young v. Cole, 3 N. C. 724, 4 Scott, 489, where a distinction 
 was drawn between the effect of a breach of warranty and that of a total 
 failure of consideration. And probably the distinction between a condition 
 and a warranty, as pointed out by Williams, J., in Daivson v. Collis, IOC. 
 B. 530, will be found to obviate any difficulty that may be supposed to 
 exist, in deciding what are the cases in which a vendee can refuse to accept, 
 or can return the article, and either resist payment of the price, or recover 
 it back if paid. A warranty, properly so called, can only exist wliere the 
 subject-matter of the sale is ascertained and existing so as to be capable of 
 being inspected at the time of the contract, and is a collateral engagement 
 that the specific tiling so sold possesses certain qualities ; but the property 
 passing by the contract of sale, a breach of the warranty cannot entitle 
 the vendee to rescind the contract, and revest the property in the vendor, 
 without his consent ; the vendee must therefore resort to an action for 
 such breach, or give it in evidence in reduction of the price, or as an 
 answer to the action if the breach renders the article wholly worthless." 
 Here, everytliing is specific and defined. The distinction in Young v. Cole 
 between a condition and a warranty, and the observations thereon in 
 Dawson v. Collis, apply to every one of the cases cited for the defendants. 
 In Youiig v. Cole, the contract was for one thing, and the seller delivered 
 another. The same remark will apply to Gardiner v. Gray and Nichol v. 
 Godts. Here, the seller delivered what he contracted to deliver, and the 
 buyer received what he contracted to buy : the warranty as to sulphur was 
 altogether collateral. Lucy v. Moujlet, 5 Hurlst. & N. 229, was also a sale 
 of an ascertained chattel. Gompertz v. Bartlett, 2 ElUs ife B. 849, is simi- 
 lar to Yowng v. Cole. [Willes, J. The property does not pass by the con- 
 tract of sale ; but only upon acceptance, after inspection and weighing. 
 Our law is peculiar in that respect. Is there any case in which it has 
 been held that the seller can put the property on the buyer against his will, 
 if he repudiates the contract before the seller has done all that he has to 
 do to the goods'!] The buyer is not bound to accept something only 
 colourably answering the description of tlie thing sold. Here, tlie hops 
 were in the defendants' own warehouse ; and the moment they were 
 examined and weighed, everything had been done on the seller's part to 
 vest the property in them in the defendants : Simmons v. Swift, 5 B. ife C 
 857, 8 D. ifc R. 693. The reasoning in Street v. Blay has always been 
 accepted as conclusive. In Gompertz v. Denton, 1 C. ife M. 207, Lord 
 Lyndhurst says : " The case of Street v. Blay seems to have been very 
 much considered. That case shews that you cannot treat a contract as 
 rescinded on the ground of the breach of warranty, except there was an 
 original agreement that the party should be at liberty to rescind in such 
 case, or unless both parties have consented to rescind it." That has always 
 been followed down to the present time ; and the principle of it is entirely 
 applicable here. In Paraons v. Sexton, 4 C. B. 907, Wilde, C. J., says :
 
 538 BANNEKMAN V. WHITE. [CHAP. V 
 
 " It is now settled that tlie breacli of a warranty is no answer to an action 
 for the price of a specific cliattel sold, although it may be used in reduction 
 of the price, or made the subject-matter of a cross-action." And in Fates- 
 hall V. Tranter, 3 Ad. & E. 103, 4 N. & M. 649, Parke, J., says : "Ac- 
 cording to the judgment of this court in Street v. Blay, the purchaser of a 
 specific chattel, having accepted it, not only is not bound to return it on a 
 failure of warranty, but cannot do so." The subject has also been fully 
 considered in the American courts, and the same conclusion arrived at. 
 In Thornton \. Wynn, 12 Wheatou, 183, — which was decided four years 
 before Street v. Blay, — it was held, that, if the sale (with a warranty) be 
 absolute, and there be no subsequent consent to take back the article, the 
 contract remains open, and the vendee must resort to his action upon the 
 warranty, unless it be proved that the vendor knew of the unsoundness of 
 the article, and the vendor tendered a return of it within a reasonaljle 
 time. In the subsequent case of Voorhees v. Uarl, 2 Hill, 288, it was held, 
 that, where there is a warranty as to quality on the sale of goods, but no 
 fraud, and no stipulation that tiie goods may be returned, though the 
 warranty be broken, the vendee cannot rescind the contract without the 
 consent of the vendor. Cowen, J., there says : " Where there is a war- 
 ranty on a sale of goods, without fraud, and no stipulation in the contract 
 that the goods may be returned, the vendee has no right to annul the con- 
 tract without the consent of the vendor. The only remedy is by an action 
 on the warranty. Such, after much fluctuation, appears to be the doctrine 
 of Westminster Hall : Street v. Blay, 2 B. & Ad. 456. In this case, Lord 
 Tenterden examined the question both on the nature of the contract and 
 the weight of authority ; and, on going tiirough with his argument, it 
 is difficult, and I think impossible, to resist the conclusion to which he 
 came. Of course he distinguishes between a sale and an executory con- 
 tract, in which latter case the goods may generally be returned as soon as 
 they are found not to satisfy the contract, if the purchaser have done 
 nothing in the mean time beyond what is necessary to give them a fair 
 trial. The case was followed by the court of Exchequer in Gompertz v. 
 Benton, 1 C. & M. 207, and substantially by the K. B. in Pateshall v. 
 Tranter, 3 Ad. & E. 103, 4 N. & M. 649. See also Freeman v. Baker, 5 
 C. & P. 475. The question was also very ably examined by Washington, 
 J., in Thornton v. Wynn, 12 Wheaton, 183, who came to the same result, 
 in which he was sustained by the Supreme Court of the United States. 
 This decision was acted on by the court of appeals in Kentucky, in Light- 
 hum V. Cooper, 1 Dana, 273. I am not aware of any case in this court 
 which conflicts with those I have referred to." 
 
 Cur. adv. vult. 
 
 Erle, C. J., now delivered the judgment of the court' : — 
 
 In this case the plaintiS" obtained a rule to set aside the verdict for the 
 
 ' The case was argued before Erie, C. J., Williams, J., Willes, J., and Byles, J.
 
 SECT. Il] BANNERMAN V. WHITE. 539 
 
 defendants, and enter it for the plaintiff", on the ground that the stipulation 
 that no sulphur had been used in the growth of the hops did not amount 
 to a condition that the hops might be rejected if sulphur had been used. 
 The plaintiff argued that the contract must be so construed because it 
 related to a specifically ascertained chattel ; and for this he cited some 
 expressions in the judgment of Street v. Blaij, 2 B. & Ad. 456. The 
 defendants, on the other hand, contended, that the contract here in question 
 was an executory contract ; tliat the intention of the parties governs in all 
 contracts whatsoever ; that, upon the evidence, it was clear that the 
 stipulation in question was intended by these parties to be a condition ; 
 and that the case of Street v. £lay had no application. 
 
 We propose to state the evidence in some detail, so as to shew the 
 meaning of the finding of the jury. 
 
 At the close of the trial, the jury were requested to give specific 
 answers to certain questions. Those questions comprised all that was in 
 contest between the parties, and cannot be properly understood without 
 taking them in combination with all that was uncontested, and keeping 
 present to the mind the issue to which they relate. 
 
 The action was for hops sold and delivered. The first plea was, in 
 effect, fraud, viz. that the plaintiff induced the defendants to buy by 
 making a false representation that no sulphur had been used, and so forth. 
 The second plea was non assumpsit. The evidence in support of the first 
 plea consisted of these facts, -^that, in 185-1, sulphur had been used in the 
 growth of hops, and the brewers afiirmed that the hops had been injured 
 thereby and their beer spoiled ; and the hop-merchants had given notice to 
 the hop-growers of their objection to buy hops in the growth of which any 
 sulphur had been used : and the plaintiff and defendants, each knowing 
 these facts, met and treated for the contract in question, the samples being 
 produced. There was no substantial variance in the account given of that 
 which passed at the interview when the contract was made. There were 
 six witnesses present. All agreed, that, before the price was asked, the 
 defendant inquired if sulphur had been used in the growth. The three 
 witnesses for the defendants stated that the plaintiff answered distinctly 
 "no," and that the defendants said they would not ask the price if sulphur 
 had been used. The plaintiff's witnesses did not contradict them, but said 
 the answer was, "There was no mould this year, and no occasion to use 
 any sulphur," and did not remember that the defendants had said they 
 would not ask the price if any sulphur had been used. The treaty then 
 went on, and eventuated in a contract to sell and deliver the bulk in 
 accordance with the samples after some days should have elapsed. The 
 hops were accordingly sent, and corresponded with sample, and were 
 weighed and delivered into the defendants' possession. Afterwards, the 
 defendants repudiated the hops, and proved that sulphur had been used. 
 
 The uncontroverted facts were, that sulphur had been used on five acres 
 out of three hundred ; that these sulphured hops were so mixed with the
 
 540 BANNERMAN V. WHITE. [CHAP. V 
 
 unsulphured as to be undistinguisli.able ; tliat the plaintiff represented that 
 no sulphur had been used ; that the defendants would not have bought the 
 hops if they liad known that fact, and could not sell them as they were, in 
 the ordinary course of their dealings with their customers. 
 
 The counsel agreed with the judge that there were two principal 
 questions for th^ jury. On the first, the contest was in substance confined 
 to the point whether the representation was wilfully false : and this 
 question was answered by the jury in the negative. The second question 
 then became material ; and it was framed with reference to the same evi- 
 dence, and on the assumption that the same facts were undisputed, — the 
 term "aflirmation" being substituted for " representation," as more appro- 
 priate to a matter of contract, to the minds of all concerned in the trial. 
 
 Thus, the question was, — "Was the affirmation that no sulphur had 
 been used intended between the parties to be part of the contract of sale, 
 and a warranty by the plaintiff?" 
 
 As to this, it was contended on one side that the conversation relating 
 to the sulphur was preliminary to entering on the contract, and no part 
 thereof, both from the form of expression and also from the written guar- 
 antee which was she\vn to have been given. On the other side it was 
 contended that the whole interview was one transaction, that the intention 
 of the parties was alone to be regarded, that the defendants had declared 
 the importance they attached to the inquiry, and that the plaintiff must 
 have known it. And the jury answered this question in the affirmative. 
 
 The effect of this finding of the jury, taken with the evidence, is now 
 to be considered. We avoid the term " warranty," because it is used in 
 two senses, and the term "condition," because the question is whetlier that 
 term is applicable. Then, the effect is that the defendants required, and 
 that the plaintiff gave his undertaking, that no sulphur had been used. 
 This undertaking was a preliminary stijsulation ; and, if it had not been 
 given, the defendants would not have gone on with the treaty which 
 resulted in the sale. In this sense it was the condition upon which the 
 defendants contracted ; and it would be contrary to the intention expressed 
 by this stipulation that the contract should remain valid if sulphur had 
 been used. 
 
 The intention of the parties governs in the making and in the con- 
 struction of all contracts. If the parties so intend, the sale may be 
 absolute, with a warranty superadded ; or the sale may be conditional, to 
 be null if the warranty is broken. And, upon this statement of facts, we 
 tlunk that the intention appears that the contract should be null if sul- 
 phur had been used : and upon this ground we agree that the rule should 
 be discharged. 
 
 Mule discUanjed.
 
 SECT. U] ALDERSON V. MADDISOX. 541 
 
 ALDERSON v. MADDISON. 
 
 In the High Court op Justice, June 2, 1880. 
 
 [Beported in Law Jieports, 5 Excltequer Division, 293.] 
 
 The facts proved at the trial before Stephen, J., and tlie arguments 
 employed on the further consideration appear from the written judgment 
 of the learned judge. 
 
 May 18, 1880. Bagshawe, Q.C, Gains/ord Bruce, and Ridlei/, for the 
 plaintiff". 
 
 H. F. Bristowe, Q.C, Waddy, Q.C, and J. Edge, for the defendant. 
 
 June 2. Stephen, J. Tliis case was tried before me at the Durliam 
 Summer Assizes in 1879, and was reserved by me for further considera- 
 tion. 
 
 The statement of claim alleged that the plaintiff was brotlier and heir- 
 at-law of Tliomas Alderson, deceased, who died intestate on the 15th of 
 December, 1877, and in whose service the defendant, Elizabeth Maddison, 
 had lived as housekeeper for many years before his death. Thomas 
 Alderson, at the time of his death, was owner in fee of an estate called 
 Manor House Farm, and on his death his property descended to the 
 plaintiff as his heir-at-law. The defendant took possession on Thomas 
 Alderson's death of the title deeds of the property. The plaintiff claimed 
 the restitution of the title deeds and damages for their detention. 
 
 The statement of defence admitted in substance the allegations of the 
 statement of claim, but stated in some detail that Thomas Alderson 
 becoming indebted to the defendant for wages, and wishing lier to remain 
 in his service, made an agreement with her to the effect that if she would 
 forbear to press him for the arrears of wages due to her, and would serve 
 him for the rest of his life without wages, he would at liis death leave lier 
 a life interest in the Manor House Fai-m. Paragraph 7 of the statement 
 of defence stated that Thomas Alderson, meaning to carry out his promises, 
 made a will by which he left tlie property in question (subject to a small 
 annuity) to the defendant for her life. 
 
 By way of counter-claim the defendant repeated the statements above 
 mentioned, and added that the will referred to, though signed by Thomas 
 Alderson, was not properly attested, whereby he had failed to fulfil his 
 engagements to her. Slie claimed a declaration that slie was entitled to a 
 life estate in the Manor House Farm, or to such life estate as the draft 
 will purported to de\-ise to lier, and that she was entitled to retain the 
 deeds for lier life. In the alternative she claimed to be entitled to retain 
 the deeds till she had been paid all wages due to her, or fair remuneration 
 for lier services.
 
 542 ALDEESON V. MADDISOX. [CHAP. V 
 
 The counter-claim originally contained an alternative claim to have the 
 real and personal estate of Thomas Alderson administered, and that she 
 might be declared to be a simple contract creditor for the amount of her 
 waives at a fair payment for her services ; but in the amended statement 
 of defence this was struck out, so that the only questions before the Court 
 are whether the defendant is entitled to a life estate in the property, and 
 wliether she is entitled to a lien on the deeds. 
 
 At the trial it was proved that Thomas Alderson had made the will 
 referred to, and that it had not been properly attested, so that as a will it 
 ■was void. 
 
 [After stating the evidence at length the judgment proceeded : — ] 
 
 I asked the jury at the suggestion of the learned counsel on both sides 
 this question : — 
 
 Whether the defendant was induced to serve Thomas Alderson as his 
 housekeeper without wages for many years, and to give up other prospects 
 of establishment in life, by a promise made by him to her to make a will 
 leaving her a life estate in Manor House Farm if and when it became his 
 property? The jury replied. Yes. I reserved for further consideration 
 the effect of this finding and evidence, and the case was argued before me 
 on the 18th of May. 
 
 The substantial question in the case appears to me to arise upon 
 the defendant's counter-claim. Has she a right to the declaration for 
 which she asks that she is entitled to a life estate in possession in the 
 property, and to the custody of the deeds for life ^ If not, I do not see how 
 she can be entitled to a lien upon the deeds for any amount of wages 
 which may be due to her. Indeed it was hardly contended in argument 
 that she was so entitled. 
 
 The defendant's case is put in two ways. First, it is said that Thomas 
 Alderson made representations to her which influenced her conduct, and 
 which his heir is bound to make good. Next, it is said that what 
 took place between them amounted to a contract, that in consideration of 
 her serving him for his life he would leave her by will a life interest in the 
 farm, if it became his property during his life and if she survived him. I 
 think that if this was so she is entitled to what is equivalent to specific 
 performance of the contract. 
 
 The law upon this subject is, I think, clear and consistent when all the 
 decisions are considered, but I am led to believe that an impression exists 
 that there may be such a thing as a representation which, though neither 
 a contract nor part of a contract, may have the effect of binding the person 
 who makes it as if it were a contract. I do not agree with this view, and 
 I think it desirable to state fully the way in which the matter presents 
 itself to me. It seems to me that every representation, false when made 
 or falsified by the event, must operate in one of three ways if it is to 
 produce any legal consequences. First, it may be a term in a contract, in 
 which case its falsity will, according to circumstances, either render the
 
 SECT. Il] ALDERSON V. MADDISON. 543 
 
 contract voidable, or render the person making the representation liable 
 either to damages or to a decree that he or his representatives sliall give 
 effect to the representation. Secondly, it may operate as an estoppel pre- 
 venting the person making the representation from denying its trutli, 
 as against persons whose conduct has been influenced by it. Thirdly, it 
 may amount to a criminal offence. The common case of a warranty is an 
 instance of a representation forming part of a contract. Pickard v. Sears' 
 and many other well-known cases are instances of representations amount- 
 ing to an estoppel. A false pretence by which money is obtained is an 
 instance of a representation amounting to a crime. 
 
 Besides these there is a class of false representations which have no legal 
 effect. These are cases in wliicli a person excites expectations which he 
 does not fulfil, as, for instance, where a person leads another to believe 
 that he intends to make him his heir, and then leaves his property away 
 from him. Though such conduct may inflict greater loss on the sufferer 
 than almost any breaoli of contract, and may involve greater moral guilt 
 than many common frauds, it involves no legal consequences, unless the 
 person making the representation not only excites an expectation that it 
 will be fulfilled, but legally binds himself to fulfil it, in which case he must, 
 as it seems to me, contract to fulfil it. 
 
 It will, I think, be found that all the difliculties of the subject may be 
 solved by keeping in mind this classification of the difi'erent classes of 
 false representations. Nothing need be said here of criminal false repre- 
 sentations, nor need I on the present occasion say more of false represen- 
 tations amounting to estoppels than that it does not appear to me that the 
 law upon that subject has anything to do with this case. Thomas Alderson 
 neither did nor said anything that could estop either him or his heir from 
 denying any state of facts whatever. He promised to leave his house- 
 keeper a life estate in the Manor Farm. He intended to do so, and had a 
 will prepared which purported to do so. He signed that will in the 
 presence of two witnesses, but unfortunately they were not both present 
 at once, and accordingly the will was void. What relation can estoppels 
 by consent or by statements have to such a case as this 1 To say that 
 Alderson's heir-at-law is estopped by Alderson's conduct from denying the 
 validity of the irregularly attested will would be to repeal the Statute of 
 Wills, but I do not see what other estoppel would affect the case. Who is 
 to be estopped ? What assertion is he estopped from ? 
 
 The question, therefore, comes to be this: were the representations made 
 to the defendant terms in a contract, or were they merely voluntary 
 revocable promises which were not in fact carried out 1 In other words, 
 did Thomas Alderson contract with his housekeeper tliat he would leave 
 her a life interest in the Manor Farm if she would serve him for liis life, 
 and if the farm became his property, and if she survived him ; or did 
 he induce her so to serve him by making promises not intended to bo 
 
 » 6 A. & E. 469.
 
 544 ALDERSON V. MADDISON. [CHAP. V 
 
 legally binding 1 Did she make a bargain, or did she take her chance of 
 liis keeping his word '! 
 
 Before examining the facts of this particular case it will, I think, lie 
 well to refer to the decisions which have led me to state the question 
 in this form. I do so because some of the language used in them may 
 seem to countenance the notion that there may be a binding representation 
 which is neither a contract nor an estoppel. I think, however, that when 
 the matter is considered it will be found that, whenever representations 
 have been held to be binding, the circumstances were such as to shew that 
 all the conditions of a valid contract had been fulfilled, and that in all the 
 cases in which representations have been held not to be binding one or 
 more of those conditions were absent. 
 
 I understand by a contract an agreement which the law will enforce, 
 and I apprehend that, speaking generally, the law will enforce all agree- 
 ments made upon good consideration or with certain solemnities which 
 dispense with consideration. Agreement and consideration are thus the 
 elements which constitute a contract not under seal. It may seem trivial 
 to mention such obvious matters, but attention to them appears to me to 
 clear up many decisions which are not otherwise very readily explained. 
 
 I now proceed to examine the cases referred to, taking first those in 
 which representations were held to be binding, and next those in which 
 they were held not to be binding. 
 
 The first case is Ilammersley v. De BieV. The facts were that the 
 brothers, of a lady engaged to be married, wrote by her father's authority 
 a memorandum, part of which was as follows : "Mr Thomson proposes for 
 the present to allow his daughter 200Z. per annum for her private use, 
 subject to a possibility of a reduction in that sum in case political or other 
 circumstances should diminish his income : and also intends to leave a 
 further sum of 10,000?. in his will to Miss Thomson to be settled on her 
 and her children, the disposition of which, supposing she has no children, 
 will be prescribed by the will of her father. These are the bases of the 
 arrangements proposed, subject of course, to revision ; but they will be 
 sufficient for Baron de Biel to act upon." The paper also contained a con- 
 dition that Baron de Biel was to settle 500?. a year on his wife for life. 
 The marriage took place. Baron de Biel made the settlement which he 
 had engaged to make, but the sum referred to was not left in the will, and 
 it was held that it must be settled for the benefit of a child of the 
 daughter. 
 
 Lord Cottenham, in delivering judgment as Lord Chancellor on appeal 
 from the Master of the Rolls, said°: "I propose first, to consider whether 
 there was any such agreement previous to the marriage as . . . was binding 
 on the late Mr Thomson to give an additional 10,000Z. as the portion of 
 his daughter. If it be supposed to be necessary for this purpose to find a 
 contract such as usually accompanies transactions of importance in the 
 1 12 CI. & F. 45. = 12 CI. & F. Gl, n.
 
 SECT. Il] ALDERSON V. MADDISON. 545 
 
 pecuniary affairs of mankind, there may not be found in tlie memorandum 
 or in the other evidence in the cause, proof of any such contract, and this 
 may have led to the defence set up by the defendants ; but wlien the 
 authorities on tliis subject are attended to, it will be found that no such 
 formal contract is required. A representation made by one party for the 
 purpose of influencing the conduct of the other party, and acted on liy 
 him, will in general be sufficient to entitle him to the assistance of this 
 Court for the purpose of realising such representation." 
 
 This language was adopted by Lord Campbell, in delivering judgment 
 in the House of Lords, and by Stuart, V.-C, in the case of Loffus v. Maw'. 
 I am inclined to think that it has been misunderstood, and has been sup- 
 posed to lay down the rule that, in cases of this kind, a representation not 
 amounting to a contract may be binding on the person who makes it. I 
 do not understand Lord Cottenham to have said anything of the sort. 
 His words appear to me to mean only that contracts of tliis nature may be 
 made like other contracts by informal documents, or partly by documents 
 and partly by conduct. That this is so is clear from other cases. In 
 Luders v. Ansteij' it was held tliat a letter, making a suggestion as to 
 a settlement, followed by marriage under such circumstances as to imply 
 the acceptance of the suggestion, may be a contract for a settlement. 
 Hammersley v. De BieP has been followed by several other cases. Prole v. 
 Soady* was in principle similar to Haiiimersley v. De BieV, and Stuart, 
 V.-C, decided it on the authority of that case, of which he said : " There 
 was no more than the expression of an intention to leave this sum" 
 (10,000^.) "by a revocable instrument. But inasmuch as the expression 
 of that intention on such an occasion had an influence on the conduct of 
 the contracting parties, and was an inducement to the contract, the House 
 of Lords .... compelled the executors of him who iiad made the represen- 
 tation to pay the money, and to fulfil that which was expressed as a mere 
 intention. Tliis doctrine, which gives all the force of a binding contract 
 to the mere expression of an intention to do something by an instrument 
 revocable in its nature, is too firmly established to be shaken." This 
 appears to me to be equivalent to saying that the cases establish that an 
 agreement to make a will in a particular way may be a binding contract, 
 that it need not be made in any particular form, and that if binding 
 it may be enforced against the representatives of the party making the 
 agreement. 
 
 Loffus V. Maw' is the next case. Its facts are almost precisely the 
 same as those of the case now before me. Gunnell being old and infirm 
 promised LofTus that if she would continue in his service till his death, he 
 would leave her the rents of two houses for her Ufe. He shewed her 
 a codicil to liis will which he had made for this purpose ; but he afterwards 
 revoked it by a further codicil. It was held by Stuart, V.-C, that the 
 
 ' 3 Gift. 592 ; 32 L. J. (Ch.) 49. - 4 Ves. 501. 
 
 3 12 CI. & F. 45. ■■ 2 Giff. 1. 
 
 P. 35
 
 546 ALDERSON V. MADDISON. [CHAP. V 
 
 trusts in fjuoui- of the plaintiff in the codicil which iiad been revoked 
 should l)e performed. 
 
 The judguieut quotes part of the passage already quoted from Lord 
 Cottenham's judgment in Hammersley v. Be Biel\ and also refers to the 
 well-known case of Pickard v. Sears'', as an authority to shew that a man 
 may be bound by a representation made to another person for the purpose 
 of intlueucing his conduct. For the reasons already given, it seems to me 
 to be simpler and more distinct to say that the case was one of a contract 
 by mutual promises — "If you will serve me I will leave you the rents 
 of two houses." If it is objected that a will is in its nature revocable, the 
 answer is that the cases of Hammersley v. Be BieV and 7Vofe v. Soady" 
 shew that that is no reason why a promise for valuable consideration to 
 make a will should not be a binding contract. This language is I think 
 simpler tlian that which turns upon representations. If the promise had 
 been, " If you will serve me for a year, I will pay you 20/.," the promise to 
 pay the 20/. would hardly have been described as a representation which 
 the promisor was bound to make good. I do not know why such terms 
 should be applied to a promise to make a will. 
 
 Lqff'us V. Maw* is approved of in Coles v. Pilkin(/ton\ which, however, 
 relates to a diflerent subject. Coverdale v. Eastwood' is a case similar in 
 principle to Loffus v. If aw'*. The father of a woman about to be married 
 wrote letters to the mother of the intended husband, in which he said, 
 " V. being my only child, of course she will come into possession of what 
 belongs to me at my decease." " It has been my intention, in the event of 
 the marriage taking place, to make a similar will in accordance with the 
 facts of the case, and of course I should settle my property on my daughter 
 absolutely." These and similar expressions, followed by marriage, were 
 held by Bacon, V.-C, to constitute a contract. His words are : " That 
 representations of tliis kind will constitute a contract is shewn beyond the 
 possibility of question l)y every case which has been referred to, as well by 
 those in which the contract has been enforced, as by those in which tlie 
 Court has found it impossible to establish the contract." The result of all 
 these cases appears to me to be that a contract to make a particular 
 disposition of property by will is not invalid merely because a will is 
 revocable, that such a contract need not be made in any particular fonn 
 (though the provisions of the Statute of Frauds may apply to it) and that 
 the validity of such a contract must be tested -by the rules which govern 
 the validity of other contracts. 
 
 I now pass to the cases in which representations of intention, whether 
 as to wills or other dispositions of property, have been held not to be 
 binding. All of these are cases in which the language used was considered 
 to amount to nothing more than a declaration of what the parties in- 
 fluenced by it knew or ought to have known to be no more than a present 
 
 1 12 CI. & F. 45. » 6 A. & E. 469. ^ 2 GifE. 1. 
 
 < 3Giff. 592; 32L. J. (Ch.) 49. ^ Law Eep. 19 Eq. 174. « Law Eep. 15 Eq. 121.
 
 SECT. Il] ALDERSON V. MADDIHON. 547 
 
 revocable intention. Sucli dcclai'iitions, no doulit, in many cases raised 
 natural expectations, wliicli induced the parties to whom they were made 
 to take irrevocable steps ; but in each case the decision turned on the 
 question whether the declai-ation made was intended to form part of 
 a contract, or only to announce a present I'cvocablo intention, or (which 
 is the same thing) to make a promise for wliich there was no con- 
 sideration. 
 
 The first of these cases is Jorden v. Mone.ijK This was a case in which 
 the facts were hard to be ascei'tained, and were open to various construc- 
 tions, Lord Cranwoi'th and Lord Brougham difl'ering from Lord St. 
 Leonards in their view of them. When Mr. Money was about to be 
 married, a question arose as to his means, and in particular as to 1200Z. 
 which he owed to Mrs. Jorden, as joint obligor on a bond, which in Mrs. 
 Joiden's opinion, had been obtained from him unfairly by a brother- of hers, 
 whose personal representati\e she was. She used language on various 
 occasions which, to say tlie least, expressed a strong intention not to sue 
 upon the bond, which she said she had abandoned, and Mr. Money was 
 induced to marry by what she said. Afterwards a decree was made by 
 the Master of the Rolls and affirmed by the Lords Justices, that Mr. 
 Money should be released from the bond. It was ai'gued that she had 
 made a representation leading Mr. Money to marry, which slie was bound 
 to make good. On appeal to the House of Lords, Lord Cranworth and 
 Lord Brougham were both of opinion that her language amounted at most 
 to a promise not to sue on the bond. Such a promise, made in considera- 
 tion of Mr. Money's marriage, would have been good as a contract, if the 
 Statute of Frauds had been complied with. The Statute of Frauds not 
 having been complied with, the promise was not binding as a contract, and 
 if regarded as a mere representation, it could not even be said to be false, 
 for it truly represented the state of her mind when she made it. Each 
 judgment, in short, appears to me to proceed upon the principle already 
 stated, that a representation must operate either as a contract or as an 
 estoppel. 
 
 Lord St. Leonards took a different view both of the facts and of the 
 law of the case, and part of the language used by him may seem at iirst 
 sight to imply that a representation not amounting to a contract may have 
 the effect of a contract. According to the view which he took of the facts, 
 Mr. Money's father had certain claims against Mrs. Jorden, which he 
 forbore to urge in consideration of her giving up her claim on his son. 
 This, he said", their lordships were "not driven to treat as a contract in 
 the proper sense of the word. It is, however, a representation by one 
 party of an intention " [the word ' not ' appears to be here omitted] " to do 
 an act which he refrains from doing in consideration of another party 
 giving up a right to something else, and refraining from doing another 
 act ; and I will shew your lordships that that is perfectly good in law, and 
 1 5 H. L. C. 185; 23 L. J. (Ch.) 805. » 5 H. L. C. 240. 
 
 35—2
 
 548 ALDERSON V. MADDISON. [CHAP. V 
 
 can be enforced without any legal contract at all." He afterwards says, 
 " He (Mr. Money, tlie father) says, ' I will not enforce the right against 
 you, which I know I liave, if you will not enforce your right against 
 ray son.' That is a representation which your lordships will presently see 
 the effect of in point of law; but it is a representation that does not 
 depend upon contract ; it is not buying and selling, but dealing in repre- 
 sentation between parties, a part of the res gestae of the case up to 
 the time of the marriage." This language does not I think mean more 
 than that the agreement in question was not one of those contracts which 
 have well-known legal names and incidents, like the contract of bargain 
 and sale, but, as Lord St. Leonards states the matter, it was an agreement 
 made upon good consideration and enforceable by law. Such an agreement 
 I should regard as a contract — I know indeed of no definition of a contract 
 which would exclude it. 
 
 In a latter part of his judgment Lord St Leonards states that he 
 differs from his colleagues as to the sort of representations which may 
 operate as an estoppel. He supposes them to lay down that' "it must be 
 a misrepresentation of tlie facts, and not a declaration of what you intend 
 to do, or intend to omit to do." The princijale, lie observes, is that a 
 person is not to be induced to act by deception, whence he infers that " it 
 is utterly immaterial whether it is a misrepresentation of fact as it actually 
 existed, or a misrepresentation of an intention to do or to abstain from 
 doing." If this \'iew were adopted in its entirety, every promise on which 
 a person acted, even if there were no consideration, would be binding 
 by way of estoppel, and such a doctrine would alter the present law 
 by giving legal force to that class of representations which at present are 
 only morally binding. The difference between the classes of misrepresen- 
 tation which do and do not bind seems to me plain. To say, "I have 
 cancelled this bond," when you have not, is to tell an untruth. To say "I 
 intend to cancel this bond," is to make a statement as to a present 
 revocable intention. If a person chooses to act on such a representation, 
 without having it reduced to the form of a binding contract, he knows, or 
 ought to know, that he takes his chance of the promisor changing his 
 mind, and therefore he is in no worse position if tlie statement is false 
 when it is made, i.e., if that intention is not really entertained, than if it is 
 true when it is made, i.e., if the intention exists and the person making 
 the statement intends to revoke it if he pleases. I have examined this 
 case at length, because I tliink tliat the language I have referred to has 
 contributed to the confusion which lias been introduced into the subject, 
 but that, when the whole case is fully considered, it is an authority for the 
 view which I have expressed. 
 
 Tliere are several other cases which support the same view. In 
 Maunsell v. Hedges' Mr. Eyre, the uncle of Mr. Maunsell, who was 
 engaged to be married, wrote Mr. Maunsell a letter in which he said, 
 1 5 H. L. C. 248. i" 4 H. L. C. 1039.
 
 SECT. Il] ALDERSON V. MADDISON. 549 
 
 "I have made my will and left you my property in the county of 
 Tipperary, which is considerable." He repeated this statement in another 
 letter, and added, " my county of Tipperary estate will come to you at my 
 death unless some unforeseen occun-ence should take place." He refused, 
 liowever, to make any settlement. In a settlement made by Mr. Maunsell 
 it was recited that he had expectations from Mr. Eyre, and he consented 
 to settle any property which he might receive under his will. The property 
 was afterwards devised to others. It was held in this case that as there 
 was no contract by Mr. Eyre to settle the property, tlie trustees of the will 
 could not be compelled to convey it to Mr. Maunsell. Lord Cranworth, 
 in his judgment, says' : " Where a man engages to do a particular thing he 
 must do it : that is a contract ; but where there are no direct woi'ds of 
 contract the question must be what has he done 1 He has made a contract 
 or he has not. In the former case he must fulfil his contract; in the latter 
 there is nothing that he is bound to fulfil . . . Where a person makes a 
 representation of what he says he has done, or of some independent fact, 
 and makes that representation under circumstances which he must know 
 will be laid before other persons who are to act on the faith of liis repre- 
 sentation being true, and who do act upon it, equity will bind him by such 
 representation, treating it as a contract." He says elsewhere': "There is 
 no middle term, no tertiura quid, between a representation so made as to 
 be effective for such a purpose and being effective for it, and a contract : 
 they are identical." He adds in reference to Ilammersley v. De BieV, 
 " Though you see tlie word ' representation ' used as it is in the speech of 
 Lord Cottenliam, I cannot think that it was meant to bear the construction 
 now attributed to it, and to raise any such distinction as is now relied on. 
 That word is no part of the judgment. I must say that I do not think it 
 is a word very happily employed. The only distinction I understand 
 is this, that some words which would not amount to a contract in one 
 transaction may possibly be held to do so in another." He adds, "The 
 circumstances there " (in Hammersley v. De Biel) " gave to the words used 
 the character of a contract which equity was bound to enforce." The 
 judgment of Lord St. Leonards is to the same effect. He is reported to 
 have said expressly in the course of the argument^ that Hammersley v. De 
 BieV was a case of contract. Both Lord Cranworth and Lord St. Leonards 
 point out that in Mauiisell v. Hedges^ there was no contract at all, and 
 tliey decide the case on that basis. The cases of Caton v. Caton" and 
 Dashwood v. Jermyn' are illustrations of the same principle. Each is 
 a case in which a promise to make a will, not amounting to a contract, 
 was held to confer no rights upon the promisee after the death of the 
 promisor. 
 
 Such being my view of the law, 1 now come to the question whether in 
 
 1 4 H. L. C. 1055. - 4 H. L. C. 1056. ' xi CI. Si F. 45. 
 
 « 4 H. L. C. 1051, and see p. 1060. = 4 H. L. C. 1039. 
 
 8 Law Eep. 2 H. L. 127. ' 12 Ch. D. 77G.
 
 550 ALDERRON V. MADDISON. [CHAP. V 
 
 this case there was a contract between the parties. The answer to that 
 question put to the jury certainly does not in plain and direct words 
 affirm such a contract, and it is no doubt to be regretted that the question 
 was not so framed as to give tliem an opportunity to do so. This is to be 
 attributed to the view taken by tlie counsel, who were no doubt guided by 
 the case of Loffus v. Maw\ and were desirous of bringing this case within 
 the terms of the principle laid down in that case by Stuart, V.-C. In 
 substance, however, I think the finding of the jury, especially when it is 
 taken in connection with the evidence of the defendant, is equivalent to a 
 finding that there was a contract. It must be taken that the defendant 
 was induced by a positive promise or series of promises to forego the wages 
 to which she would otherwise have been entitled, and to give up a prospect 
 of being married. It is to me inconceivable that she should have done 
 this had she not understood the promises so made to be legally binding. 
 The making of the will to her satisfaction, and the fact that Alderson 
 shewed it to her to see if slie was satisfied, are to my mind the strongest 
 possible evidence that sucli was the character of the transaction. If it liad 
 been intended that she was to be at his mercy, he would not have shewn 
 her tlie will. 
 
 It was urged that tliere was no mutuality, that she might have left his 
 service at any moment, and that he would have had no remedy, and that 
 as every contract implies mutuality there was thus no contract. Upon 
 full consideration I do not agree witli tliis view. Whether he would have 
 had any remedy against her if she had left his service may be a question, 
 but there are many cases in which the consideration on one side must be 
 wholly executed before any obligation arises on tlie other, and in wliicli the 
 party who gives the first consideration is never under any ol)ligation 
 to give it. In such cases it is impossible that more than one party to the 
 contract should ever sue upon it. Cases in which a reward is offered for 
 information are an illustration. The person wlio promises the reward can 
 never sue any one for not giving the information, Ijut when tlie informa- 
 tion has been given the promisee can sue for the reward. The doctrine 
 that the solemnity of sealing dispenses with consideration is connected with 
 such obligations as these. A bond is usually given in respect of an 
 executed consideration, which, if there were no bond, would often impose 
 an obligation on the obligor, tliougli he may never liave had any right of 
 action against the obligee. 
 
 Upon the whole I am of opinion tliat tliere was a contract between 
 Thomas Alderson and the defendant to tlie eflect already stated. As it 
 was a contiact relating to land it faUs within the 4th section of the Statute 
 of Frauds, but as it was completely performed on the part of the defendant, 
 according to the well-known doctrine of equity the application of tlie 
 statute is barred. 
 
 There will lie a declaration as prayed in the counter-claim, but as the 
 
 ' 3 Giff. .592 ; 32 L. J. (Ch.) 49.
 
 SECT. II] MONTEFIORI V. MONTEFIORI. 551 
 
 case is certainly one of difficulty, and one in which the heir could liardly 
 be expected to concede at once the claim made Ijy the defendant, I think 
 that tlie costs ought to come out of the estate. 
 
 Judgment for tfie defendant'. 
 
 MONTEFIORI v. MONTEFIORI. 
 
 In the King's Bench, Easter Term, 17G2. 
 
 [Reported in Sir William BlacJcstone's Reports, vol. 1, p. 363.] 
 
 Joseph Montefiori, a Jew, being engaged in a marriage treaty ; his 
 brother Moses, to assist him in his designs, and represent him as a man of 
 fortune, gave him a note for a large sum of money, as the balance of 
 accounts between him and his brother Joseph ; whicli balance he (Moses) 
 acknowledged to have in his hands ; thougli, in truth, no such balance or 
 any thing like it, existed. After the marriage had, Moses reclaimed this 
 note, as being given on no consideration ; and the matter was referred to 
 arbitration. The arbitrators awarded the note to be given up, which 
 Joseph refused to do ; upon which the Court was moved for an attachment 
 against him, for non-performance of this award ; and on his part a cross 
 motion was made, to set aside this award ; on a suggestion, that the arbi- 
 trators were mistaken in point of law. 
 
 Lord Mansfield, Chief Justice. 
 
 The law is, that where, upon proposals of marriage, third persons 
 represent any thing material, in a light ditterent fr'om the truth, even 
 tliough it be by collusion with the husband, they sliall be bound to make 
 good the thing, in the manner in which they represented it. It shall be, 
 
 ' The opinion of the House of Lords was that there was no contract. " Tlie case," 
 said Lord Selborne, "was manifestly one of conduct on the part of the appellant 
 (affecting her arrangements in life and jjecuniary interests) induced by promises of her 
 master to leave her a life estate in the Moulton Manor Farm by will, rather than one of 
 definite contract, for mutual considerations, made between herself and him at any 
 particular time. There was certainly no contract on her part wluch she would have 
 broken by voluntarily leaving his service at any time during his life; and I see no 
 evidence of any agreement by her to serve without, or to release her claim to, wages. 
 If there was a contract on his part, it was conditional upon, and in consideration of, 
 a .series of acts, to be done by her, which she was at liberty to do, or not to do, as she 
 thought fit ; and which, if done, would extend over the whole remainder of his life. If 
 he had dismissed her, I do not see how she could have brought any action at law, or 
 obtained any relief in equity." 
 
 The House was also of opinion that as the alleged acts of part performance preceded, 
 they could not be evidence of, any contract on the appellant's part ; and that no part 
 performance of any contract was proved which would exclude the operation of the 
 Statute of Frauds. — Maddison v. .-lldcrsun, 8 App. Cas. 472. Ed.
 
 552 PICKARD V. SEARS AND BARRETT. [CHAP. V 
 
 as represented to he. And the Imsband alone is entitled to relief, as well 
 as when the fortune, &,c. so misrepresented has been specifically settled on 
 the \nie : for no man shall set up his own iniquity as a defence, any more 
 than as a cause of action. The arbitrators therefore being cleai-ly mistaken 
 in point of law the award must be set aside. 
 
 Denison and Wilmott, Justices, of the same opinion. Foster absent. 
 
 Rule for the attachment discharged ; ride for setting aside 
 the award made absolute. 
 
 PICKARD V. SEARS AND BARRETT. 
 
 In the King's Bench, April 27, 1837. 
 
 [Reimrted in G Adolplms lO Ellis, 4G9.] 
 
 Trover for machinery. Pleas : First, Not Guilty : Secondly, That the 
 plaintiff was not possessed, <fec. Issues on both pleas. 
 
 On the trial before Lord Denman, C J., at the London sittings after 
 Trinity term, 1835, it appeared that the property was taken by the sheriff of 
 Surrey, under a fi. fa. issued against Metcalfe in April, 1834, at the suit of 
 Hill, and was sold by the sheriff to the defendants in August, 1834. It was 
 not disputed that the property had originally belonged to Metcalfe, and that 
 he in fact was in possession at the time of the seizure. The plaintiff 
 proved the execution of an indenture of mortgage, dated 15th January, 
 1834, between Metcalfe of the first part, and himself of the second; 
 whereby, in consideration of 913/. 11«. Gd. paid to Metcalfe by the 
 plaintiff', tlie land and house where the machinery was, together with the 
 machinery itself, and all the right, title, and interest of Metcalfe therein, 
 were assigned to the plaintiff, liis executors, &c., subject to a proviso for 
 redemption on payment to the plaintiff, his executors, ifec. of the said sum 
 of 913/. lis. Gd., with interest, on the 15th of January, 1835; with a 
 covenant that, if default should be made in payment, it should be lawful 
 for Pickard to enter upon the messuage, &c., and take possession of the 
 goods, (fee. Notice of this deed was given by the plaintiff to the defendants, 
 after the sale by the sheriff; and possession of the property was demanded 
 of them, and refused. By the evidence of Hill's attorney, it appeared 
 that, after the seizure, the plaintiff had repeatedly conversed with the 
 witness, sometimes in Metcalfe's presence, referring to the seizure, and had 
 never made any claim to the goods, though he stated that Metcalfe was his 
 debtor for about 500/., and frequently consulted with the witness as to the 
 best way of disposing of the property : that, after a negotiation for sale 
 had gone off, the witness had advised the plaintiff and Metcalfe to try to 
 raise 1000/., to pay off the execution creditor, and the remainder to go to
 
 SECT. II] PICKARD V. SEARS. 553 
 
 carry on the business : that the phiintifF had named a party, from wliom 
 it was attempted, but witliout success, to obtain the money; and that the 
 witness had told tlie plaintifl' that the defendants were about to purchase 
 the property. It was not disputed that the mortgage was made bona fide, 
 nor that the defendants had purchased bona fide and without notice of tlie 
 mortgage. Tlie defendant's counsel applied to the Lord Chief Justice to 
 amend the pleas by inserting a plea of leave and licence ; which was 
 refused. They then suggested that it should be left to the jury whether 
 tlie plaintifl' Iiad concurred in tlie sale : but his Lordship was of opinion 
 that there was no evidence of such concurrence, and directed the juiy to 
 find for the plaintifT, if they thought that the mortgage was a boiiii fide 
 transaction. Verdict for the plaintiff. In Micliaelmas term 183.5, Sir 
 F. Pollock obtained a rule nisi for a new trial. 
 
 Erie and Sewell shewed cause in Hilary tei'm last. The articles were 
 in Metcalfe's possession according to the intention of the mortgage deed ; 
 there was no badge of fraud. The property was in the plaintiff, and never 
 passed to the defendants. Tliis is the only question open on the pleadings, 
 no doubt being raised as to the conversion, which alone can be disputed on 
 the first plea. Now the fact, that the plaintiff made no objection when 
 tlie sale was going to take place without his knowledge, could not divest 
 him of the property. He was not bound to interfere. The plaiiitift"s 
 consent, if material to the defence, sliould have been pleaded. 
 
 Sir F. FoUock and iUeasby contra. The sale took place with tlie 
 knowledge of the plaintiff, and virtually by his authoi'ity. He had full 
 power to authorise a sale, either generally, or to a particular party ; and 
 his acts went far enough to give the authority. Then lie cannot di.spute 
 that the sale was valid, and transferred the possession, so as to support 
 the second plea. His conduct induced the attorney of the execution 
 creditor to change the situation of the parties ; and the case resembles 
 that of admissions made, upon which the party to whom they are made 
 acts so as to change his situation ; there he who makes the admission is 
 estopped from disputing the fact admitted ; judgments of the Court of 
 K.B. in Graves V. Key' and Ileaney. Rogerti'. The juiy should, therefore, 
 have been asked whether the plaintiff authorised the sale. 
 
 Cur. adv. vult. 
 
 Lord Denman, C. J., in this term (April 27th), delivered the judgment 
 of the Court. 
 
 This was an action of trover for machinery and other articles, brought 
 liy a mortgagee of one Metcalfe, the former owner, against a purchaser 
 from the sheriff, under an execution levied against that former owner. 
 The pleas were : first. Not Guilty : second, That plaintiff was not 
 possessed of the property as his own. Sufficient evidence of a bona fide 
 
 1 3 B. & Ad. 318, n. (a). ^ 9 jj. & C. 586.
 
 554 PICKARD V. SEARS. [CHAP. V 
 
 mortgage was adduced to prove that the property had been assigned to the 
 phiintifi' some montlis before the execution ; and no doubt was ultimately 
 made that the property was in fact his. The mortgagor had however 
 remained in possession, carrying on his trade, till the execution issued : 
 and the defendant made it plainly appear that, even after the sheriff had 
 entered, and even after tlie plaintiff knew that a sale was in contemplation, 
 he had come to the premises, and given no notice of his claim ; on the 
 contrary, he called on the execution creditor's attorney, with the mortgagor, 
 and consulted him about the state of affairs, and the course to be taken. 
 He stated, indeed, that he was Metcalfe's creditor to the amount of 5001, 
 but never spoke of the mortgage, or claimed the goods as his own, though 
 the attorney told him that he had some intention to sell them. The 
 defendant purchased bona tide, and in total ignorance that the plaintiff 
 had any interest. The bill of sale was executed on the 12th of August, 
 the plaintiff's first application was made in December, when he demanded 
 the sum advanced ; which being refused, he demanded the goods : they 
 were refused also. 
 
 The difficulty was, to give the defendant the benefit of these facts 
 under the pleas on the record. After I had summed up the evidence, an 
 application to amend by introducing a plea of leave and licence was, for 
 obvious reasons, refused. 
 
 The defendant's counsel then contended that the plaintiff's conduct 
 amounted to a concurrence in the sale, so as to make him in truth tlie 
 vendor, and divest the property. I thought there was no evidence of tliis; 
 and declined to take the jury's opinion, whether the facts proved it. We 
 granted a rule for a new trial, being desirous of considering whether this 
 view of the case ought not to liave been submitted to tlie jury. 
 
 Much doubt has been entertained whether these acts of the plaintifl", 
 however culpable and injurious to the defendant, and however much they 
 might be e\-idence of the goods not being his, in the sense that any 
 persons, and amongst others the defendant, would be naturally induced 
 thereby to believe that they were not, furnished any real proof that they 
 were not his. His title having been once established, the property could 
 only be divested by gift or sale; of which no specific act was even 
 surmised. 
 
 But the rule of law is clear, that, where one by his words or conduct 
 wilfully causes another to believe the existence of a certain state of things, 
 and induces him to act on that belief, so as to alter his own previous 
 position, the former is concluded from averring against the latter a different 
 state of tilings as existing at the same time ; and the plaintifl', in this case, 
 might have parted with his interest in the property by verbal gift or sale, 
 without any of those formalities that throw technical obstacles in the way 
 of legal evidence. And we think his conduct, in standing by and giving a 
 kind of sanction to the proceedings under the execution, was a fact of such 
 a nature, that the opinion of tlie jury ought, in conformity to Heane v.
 
 SECT. Il] FREEMAN V. COOKE. 555 
 
 Rogers'' and Graves v. Kerj', to h.ave been taken, whether he had not, in 
 point of fact, ceased to be the owner. That opinion, in the affiriuativo, 
 would have decided the second issue on the record in the defendant's 
 favour. 
 
 Rule absolute. 
 
 FREEMAN AND ANOTHER, Assignees of WILLIAM 
 BROADBENT v. COOKE. 
 
 In the Exchequer, July 11, 1848. 
 [Iteported in 2 Exchequer Heports, 654.] 
 
 Trover by the plaintiffs, as assignees of William Broadbent, for the 
 conversion of certain goods of the bankrupts before the bankruptcy. The 
 defendants pleaded not guilty, not possessed, and leave and Hcense. The 
 plaintiffs joined issue upon the two first pleas, and traversed the last, upon 
 which traverse issue was joined. At the trial, before Alderson B., at the 
 last Liverpool Spring Assizes, it appeared that the defendant was tlie 
 sheriff of Yorkshire, and that his officers had seized the goods in question, 
 under a writ of fi. fa., against Joseph and Benjamin Broadbent ; that 
 William Broadbent, in anticipation of a distress, had removed the goods, 
 (which there was evidence to shew were his,) to the house of liis father 
 Joseph, and afterwards to the house of his brother Benjamin ; that, when 
 the officers entered Benjamin's liouse, the bankrupt told them they were 
 the goods of his brother Benjamin, (supposijig, as it would seem, tliat the 
 writ was against himself). Tlie writ, being produced, was against Benja- 
 min. William then told the officers that the goods belonged to another 
 brother, and, finally, that they were his own. The goods were then seized, 
 and sold as those of Benjamin. It was contended, by the defendant's 
 counsel, that the statements and conduct of the bankrupt operated as 
 conclusive evidence against him ; that the property was not his at the 
 time of the conversion, and that the assignees were also bound. The jury 
 found, that the goods were, in fact, William's, and also, "tliat William 
 represented tlie goods to the sheriff's officers as tlie goods of Benjamin, so 
 as to induce them, by that false representation, to seize the goods." The 
 plaintiff, under the direction of the learned judge, obtained a verdict, leave 
 being reserved to the defendant to move to entei- a verdict in liis fa\oui' on 
 any of the issues. 
 
 Knowles having obtained a rule accordingly, 
 
 Watson, Atherton and //. Hill, shewed cause (June 22)'. 
 
 Knotvles, {flfill with him,) in support of the rule. 
 
 ' 9 B. & C. 586. = 3 B. <S Ad. 318, note («). 
 
 ■' Tlie arguments are omitted. Ed.
 
 556 , FREEMAN V. COOKE. [CHAP. V 
 
 The judgment of the Court was delivered by 
 
 Parke, B. In this case, whicli was argued before my brothers 
 Alderson, Rolfe, Phitt, and myself, at the sittings after the last term, we 
 are all of opinion that the rule ought to be discharged. 
 
 It was an action of trover, by the assignees of William Broadbent, 
 against the Sheritt' of Yorkshire, for goods of the bankrupt. There were 
 pleas of not guilty, not possessed, and leave and license. Tlie conversion 
 was the seizure of the goods by the defendant's officers, under a fi. fa. 
 against Joseph and Benjamin Broadbent. It appeared, that, when the 
 officers entered, tlie bankrupt told them the goods seized were the property 
 of Benjamin ; he did so, supposing that they had no writ against Benjamin. 
 Afterwards he contradicted that statement, and said that tliey were the 
 goods of his brother Joseph. It was contended, that this representation 
 bound William, because it induced the officers to seize ; and tliat he could 
 not complain of that act, nor could tlie assignees who claimed under him. 
 My brother Alderson left a question to tlie jury upon this part of the 
 case, the finding on which he reserved for the consideration of the Court, 
 gi\'ing leave to enter a verdict for the defendant on the issue on the plea 
 of not possessed. Tiie jury found, that the goods were really William's ; 
 but they also found, " that William represented the goods to the sheriff's 
 officer as the goods of Benjamin, so as to induce him, by that false repre- 
 sentation, to seize them;" and the question is, whether this finding is 
 sufficient to estop the bankrupt and the plauitifls as assignees, from com- 
 plaining of the seizure of these goods as their own? 
 
 The case was very fully argued before us, and many questions discussed 
 on the law of estoppels, on which it is unnecessary to give an opinion. It 
 is certain that estoppels by record and by deed must, in order to make 
 them binding, be pleaded, if there be an opportunity, othermse the 
 party omitting to plead it waives the estoppel, and leaves the cause at 
 large, on which tlie jury may find according to the truth : TrevUliar d. 
 Trevithar v. Lmvrence' ; Magraith v. Ilardy^. With respect to estoppels 
 in pais, in certain cases there is no doubt they need not be pleaded in 
 order to make them obligatory. For instance, where a man represents 
 another as liis agent, in order to procure a person to contract with him as 
 such, and he does contract, the contract binds in the same manner as if he 
 made it himself, and is his contract in point of law ; and no form of 
 pleading could leave such a matter at large, and enable the jury to treat 
 it as no contract. The same rule appears to apply to all similar estoppels 
 in pais, as the learned editor of Wms. Saund. (Vol. 1, p. 326, n. 2) ex- 
 presses his opinion. The estoppel, therefore, if it be one created by the 
 conduct of the bankrupt in this case, is not opened by the omission to 
 plead it ; and the oidy question is, whether it be an estoppel 1 It is con- 
 tended that it was, upon the authority of the rule laid down in Pickard 
 
 1 2 Ld. Raym. 10.51 ; Salk. 277. -^ i Bing. N. G. 782.
 
 Sect, ii] feeeman v. cooke. 557 
 
 V. Sears'. That rule is, "that, wliere one, by his words or conduct, 
 wilfully causes another to believe in tlie existence of a certain state of 
 things, and induces him to act on that belief, or to alter liis own previous 
 position, the former is concluded from averring against the latter a 
 different state of things as existing at the same time." That was founded 
 on previous authorities, in the cases Greaves v. Key^, Hearne v. Rogers^, 
 and has been acted upon in some cases since. Tlie priaiciple is stated 
 more broadly by Lord Deimian, in the case of Gregg v. WelW, where his 
 Lordship says, that a party who negligently or culpably stands by and 
 allows another to contract on the faith of a fact which he can contradict, 
 cannot afterwards dispute that fact in an action against the person whom 
 he has himself assisted in deceiving. Whether that rule has been cor- 
 rectly acted upon by the jury in all the reported cases in which it has been 
 applied, is not now the question ; but the proposition contained in tlie 
 rule itself, as above laid down in the case of Pkkard v. Scars, must be 
 considered as established. By the term "wilfully," however, in that rule, 
 we must understand, if not that the party represents that to be true 
 which he knows to be untrue, at least, that he means his representation to 
 be acted upon, and that it is acted upon accordingly ; and if, whatever a 
 man's real intention may be, he so conducts himself that a reasonable 
 man would take the representation to be true, and believe that it was 
 meant that he should act upon it, and did act upon it as true, the party 
 making the representation would be equally precluded from contesting 
 its truth ; and conduct, by negligence or omission, where there is a duty 
 cast upon a person, by usage of trade or otherwise, to disclose the truth, 
 may often have the same effect. As, for instance, a retiring partner 
 omitting to inform his customers of tlie fact, in tlie usual mode, that the 
 continuing partners were no longer authorised to act as his agents, is 
 bound by all contracts made by them with third persons, on the faith of 
 their being so authorised. But if we apply this rule, either in the terms 
 in which it is enunciated in Picltard v. Sears, or as it is above expounded, 
 the finding of the jury is insufficient to entitle the defendant to have a 
 verdict entered for him on the plea of not possessed. It is not found that 
 he intended to induce the officer to seize tlie goods as those of Benjamin ; 
 and, whatever intention he liad on his first statement, was done away with 
 by an opposite statement before the seizure took place. Nor can it I)e 
 said that any reasonable man would have seized the goods on the faith of 
 the bankrupt's representation, taken altogether. In trutli, in most cases 
 to which the doctrine in Pickard v. Sears is to be applied, the representa- 
 tion is such as to amount to the contract or license of the party making 
 it. Here there is no pretence for saying it amounted to a license, and a 
 contract is out of the question. We therefore think that the rule must be 
 discharged. 
 
 Rule discharged. 
 ' C A. <fc E. 471; s. c, 2 N. & P. 486. 
 = 2 B. & A. 318. 3 9 B. & C. 586. * A. & E. 97.
 
 658 SLIM V. CROUCHER. [cHAP. V 
 
 SLIM V. CROUCHER. 
 
 In Chancery, March 10, 18G0. 
 
 [Beportcd in 1 De Gex, Fisher d) Jones, 518.] 
 
 This was an app(N-il from tlic decree made by Vice-Chancelloi- Stuart, 
 dii'ectiiig the appellant John Thomas Croucher, within one month after 
 service of the decree, to pay to the plaintiff James Slim, tlie sum of 300^. 
 and interest thereon at tlie rate of 51. per cent, per annum from the 
 2nd of May, 1857, to tlie day of payment, and to pay the plaintifl' his 
 costs of suit when taxed. 
 
 In December, 1856, a builder named Thomas Hudson, having finished 
 building four houses on a piece of land in Croucher Place, Bromley, in 
 Middlese.x, applied to Messi-s. Noi'ton ife Co. tlie plaintitt"s solicitors, and 
 requested to know if any client of theirs would lend Blr. Hudson money 
 on a mortgage of the houses, informing theui at the same time that 
 Mr. John Thomas Croucher, to whom the land belonged on which the 
 liouses were built, liad agreed to grant Mr. Hudson a lease of it for 
 98 years and a half, from Christmas, 1853, at a peppercorn rent. 
 
 Messrs. Norton & Co. having read the agreement for a lease which was 
 shewn to them by Mr. Hudson, required an assurance from Mr. Croucher 
 that he would grant a lease according to the agreement. 
 
 Under these circumstances Mr. Hudson applied to Mr. Croucher and 
 informed him of the agreement, and Mr. Croucher thereupon wrote and 
 sent by Mr. Hudson the following letter to Mr. Norton : — 
 
 "Post-office, Shad well, December 7, 1856. 
 " Sir, — I am quite agreeable to grant a peppercorn lease of ground on 
 ■which four houses are erected, and situate at Bromley, to Mr Hudson. 
 
 " I am. Sir, yours &c. &c., 
 "_ Norton, Esq." "J. T. Croucher." 
 
 The plaintiff then satisfied himself of the value of tlie proposed 
 security, and Messrs. Norton & Co. proceeded to prepare a lease in the 
 terms agreed upon. 
 
 On the 30th of January, 1857, Messrs. Norton & Co. wrote to 
 J. T. Croucher and to Hudson, informing them that the draft of the lease 
 was prepared, and requesting them to call and examine it. Croucher and 
 Hudson accordingly called and examined the draft lease at the office of 
 Messrs. Norton &, Co., and signed at the foot thereof a memorandum of 
 approval, as follows : — 
 
 " We have approved and do approve of this draft lease dated the 
 Uth January, 1857. 
 
 "J. T. Croucher. 
 "Thomas Hudson."
 
 SECT. Il] SLIM V. CllOUCHER. 5o!) 
 
 A lease was afterwards engrossed from this draft, and with a counter- 
 part was duly executed by both Croucher and Hudson at tlie ollice of 
 Messrs. Norton & Co., who retained the lease on behalf of the plaintifi' as 
 a security, and handed over tlie counterpart to Mr. Crouclier. 
 
 Between the 19th of January, 1857, and the 2nd of May, 18.57, t\n: 
 plaintiff advanced to Mr. Hudson various sums of money, amounting in the 
 whole to 300^., on the faith of tlic security ; and on the 2nd of May, 1 857, 
 Mr Hudson delivered to the plaiutill' a deed purporting to be a uiortgage 
 by way of underlease of the houses comprised in the said lease to secure 
 300^. and interest. 
 
 In August, 1857, Mr. Hudson, having become embarrassed, went 
 abroad, where he had ever since remained. 
 
 Shortly afterwards, the plaintiff discovered that in August, 185G, 
 Mr. Croucher had granted to Hudson a lease for ninety-nine years, or 
 some long term of years, which lease included all the premises comprised in 
 the plaintiti"s security, and was still subsisting. This lease had been duly 
 registered at the Middlesex Registry Office, and afterwards assigned by 
 Mr. Hudson for value to a stranger, so that at the date of the plaintiff's 
 mortgage Mr. Croucher had no right to grant to Hudson the lease which 
 he liad mortgaged to the plaintiff, and, in fact, the latter lease was wholly 
 worthless. 
 
 The bill was filed against Croucher and Hudson, and stated to the 
 above effect and that under tlie circumstances aforesaid the plaintiff had 
 been induced to lend the 300^. by fraud, misrepresentation and conceal- 
 ment on the part of both the defendants ; and that Croucher, in manner 
 aforesaid, had assisted Hudson in misleading and deceiving the plaintiff", 
 and in obtaining by means of such deception the plaintiff's money ; and it 
 prayed that Croucher might be ordei-ed to repay to plaintiff the 300^., with 
 interest, from the respective times of advancing the sums composing the 
 same, and all costs, charges and expenses incurred by the plaintiff' in 
 consequence of the said fraud, misrepresentation and concealment, the 
 plaintiff offering to deliver up the said lease, and to execute a release as 
 the Court should direct, and that Croucher might pay to the plaintiff" his 
 costs of the suit. 
 
 The aj)pellant Croucher denied the truth of the allegations of fraud, 
 misrepresentation and concealment, and stated by way of defence that at 
 the time of granting the lease comprised in the plaintiff's security, he had 
 forgotten the grant by him to Hudson of the prior lease of the same 
 premises, and had, in consequence, inadvertently granted the second 
 lease. 
 
 On the 24th of January, 1860, the Vice-Chancellor, on a motion for 
 decree, made the order undei- appeal. 
 
 The case is reported in the 2nd volume of Mr. Giffard's Reports'. 
 
 1 Page 37.
 
 560 SLIM V. CROUCHER. [CHAP. V 
 
 Mr. Malhis and Mr. G. L. Russell for the plaintiflf. 
 
 This case is governed by Burrotms v. Lock\ Equity will order the 
 defendant Croucher to indemnify the plaintiff for the loss occasioned to 
 him by having taken the security of an invalid lease, relying upon the 
 representation of the defendant that he had the power to grant the lease ; 
 Evans v. Bicknell ' ; Rawlins v. Wickham'\ 
 
 Mr. W. D. Lenis and Mr. Surrage for the appellant the defendant 
 Croucher. 
 
 The defendant Croucher, in the transaction in question, did not stand 
 in any fiduciary relation towards the plaintiff, and the representation 
 complained of was made without fraud. The only relief, therefore, the 
 plaintiff could be entitled to in this Court would be a decree for specific 
 performance. But a decree for specific performance is out of the question 
 in the circumstances of the case, and it being impossible to replace the 
 parties in the position in which they stood before the misrepresentation 
 was made, this Court cannot award compensation for the loss sustained by 
 the defendant in consequence of the nonperformance of the contract into 
 which he was induced to enter, relying upon the truth of such representa- 
 tion. His remedy is at law only. The rule of the Court is thus stated by 
 Lord Cottenham in Sainshury v. Jones'^: — "I certainly recollect the time at 
 which there was a floating idea in the profession, that this Court might 
 award compensation for the injury sustained by the nonperformance of a 
 contract, in the event of the primary relief for a specific performance 
 failing ; and I have formerly seen bills praying such relief ; but that arises 
 from my having known tlie profession sufliciently long to recollect the 
 time wlien the decision of Lord Kenyon, in Denton v. Stewart^, had not 
 been formally overruled ; but, at that time, very little weight was attached 
 to it, and very few instances occurred in which plaintiffs were advised to 
 ask any such relief ; and, for a short time. Sir W. Grant's decree in 
 Greenaway v. Adams'' added something to the authority of Denton 
 V. Stewart', although he threw out strong doubts as to the principle of that 
 case. This, however, lasted but a short time, for, Greenaway v. Adams*' 
 occurring in 1806, Lord Eldon in 1810, in Todd v. Gee'', expressly over- 
 ruled Denton V. Stewart^, and from that time there has not, I believe, been 
 any doubt upon the subject." The plaintifi''s loss, in the present case, has 
 been occasioned, in a great measure, by his own negligence, in not search- 
 ing the register. 
 
 They referred to Pulsford v. Richards"; Clifford v. Brooke^ ; Arnot 
 V. Biscoe^" ; Partridge v. Usborne" ; Blair v. Bromley^' ; Ratvlins v. JKicA- 
 ham"; Edwards v. M.^Leary^'^ ; Clare Hull v. Ilarding^^ ; Dannv. Sjnirrier"' , 
 Pearce v. Creswick". 
 
 1 19 Yes. 470. = 6 Yes. 174. » 3 De G. & J. 304. •« 5 Myl. & Cr. 3. 
 
 6 1 Cox, 258. « 12 Ves. 395. ' 17 Yes. 273. ** 17 Beav. 87. 
 
 " 13 Ves. 131. i» 1 Ves. sen. 95. " 5 Russ. 195. i- 5 Hare, 542. 
 
 " 3 De G. & J. 304. " Coop. 308. ^•' 6 Hare, 273. " 7 Ves. 235. ^^ 2 Hare, 28G.
 
 SECT. Il] SLIM V. CROUCHER. 561 
 
 Mr. JfaJins was not called on to reply. 
 
 The Lord Chancellor '. 
 
 The defence set up in this suit is, that there was a remedy at law, and 
 that that is the only remedy competent to the plaintiff. Now that there 
 was a remedy at law I think is quite clear. Here was a misrepresenta- 
 tion made by the defendant of a fact which ought to have been within his 
 knowledge, it was made with the intention of being acted upon, it was 
 acted upon, and thereby a loss accrued to the plaintiff, and there is no 
 doubt in my mind that an action would lie, and tliat it would be for a jury 
 to assess the damages. I am of opinion, however, tliat this belongs to a 
 class of cases over which courts of law and courts of equity have a common 
 jurisdiction, and in which the procedure of both jurisdictions is adapted 
 for doing justice. I do not regret that there is such a class of cases, nor 
 should I be sorry to see it extended. But being of opinion that this is a 
 case in which a court of equity has jurisdiction as well as a court of law, 
 I think that it is a much litter case for a court of equity than for a court 
 of law, because a court of law could only have left it to a jury to assess 
 tlie damages ; whereas here, by the superior powers of the court of equity, 
 justice can be done between the parties in the most minute detail. 
 
 There has been a misrepresentation ; and if there had been moral fraud 
 in the case, it could hardly have been disputed that a court of equity 
 would have had jurisdiction to inquire into it, and to call upon the 
 defendant to disclose all that he knew, and give relief from the conse- 
 quences of the fraud. Now, although there may not be moral fraud here, 
 yet I think that the party who has been injured has a right to relief. 
 Mr. Lewis, in a very able argument, has cited a number of cases in which 
 he says that a contrary doctrine has been laid down in this Court, but he 
 has not cited one single case similar to this, where it is held that equity 
 will not give relief. 
 
 I think that his authorities may be divided into two classes, one where 
 there was only a general claim to damages, which a court of equity at that 
 time could not have properly assessed, and the other class where there was 
 a breach of a promise, not the misrepresentation of a fact. But here there 
 is the misrepresentation of a fact, and there is no difficulty at all in 
 assessing the amount of the loss and in doing justice between the parties. 
 I cannot distinguish this case from the case of Burrowes v. Lock''. Tliere 
 the defendant is called a trustee, because he was a trustee, but the word is 
 used merely to designate the person who took a part in the transaction. 
 There was no fiduciary relation between the plaintiff and the trustee who 
 made the misrepresentation. They were strangers to each other just as 
 much as the plaintiff and the defendant are in this case, but the trustee 
 stated, and stated innocently, just as much as the defendant in this case, 
 what was untrue ; and it was held that he was liable to make good the 
 
 ' Lord Campbell. - 10 Veg. 170. 
 
 F. 36
 
 f,C2 SLIM V. CROUCHER. [CIIAP. V 
 
 loss that had arisen from his misrepresentation. I believe that every 
 word which Sir William Grant uses in that case is applicable to this. " It 
 is objected," lie says, "that this is a demand for damages : also, that this 
 was not a wilful misrepresentation. As to the first point, the demand is 
 properly made in equity; and the Lord Chancellor, in Evans v. BickneW, 
 declared that the case of Pasley v. Freeman', and all others of that class, 
 were more fit for a court of equity than a court of law : but his Lordship 
 was clearly of opinion that at least there is a concurrent jurisdiction ; and 
 says, ' It has occurred to me that that case, upon the principles of many 
 decisions in this Court, might have been maintained here ; for it is a very 
 old head of equity that if a representation is made to another person, 
 going to deal in a matter of interest upon the faith of tliat representation, 
 the former shall make that representation good if he knows it to be false.'" 
 That is, you may undo the transaction, and you may replace the person to 
 whom the representation is made as far as possible in the same situation in 
 wliicli he was before the representation was made. Lord Eldon certainly 
 does say, " if he knows it to be false." But the meaning of that qualifica- 
 tion of the proposition is, as I understand the words, "if he makes a 
 misrepresentation as to what he ought to have known, and what he did at 
 one time know, although he alleges that at the particular moment that he 
 made the representation he had forgotten it." It so happens that in the 
 case of Burr owes v. Loch^, the person who made the representation set up 
 the same defence as is now done by Mr. Croucher. Sir W. Grant goes on 
 to say : — " In this case the plaiutiflF was going to deal -with Cartwright 
 upon a matter of interest ; and applied to the person best qualified to give 
 information, the trustee, to know what Cartwright was entitled to ; who 
 told the plaintiff expressly that Cartwright was entitled to 288?., and had 
 an undoubted right to make an assignment to that extent, knowing that 
 he had not a right to make such an assignment, having previously agreed 
 to give another person \Ql. per cent, out of the fund. There is therefore a 
 concurrence of all circumstances which the Lord Chancellor thinks requisite 
 to raise the equity. The excuse alleged by the trustee is, that, tliougli lie 
 had received information of the fact, he did not at tliat time recollect it. 
 But what can the plaintifi" do to make out a case of this kind, but shew, 
 first tliat the fact as represented is false, secondly that the person making 
 the representation liad a knowledge of a fact contrary to it." 
 
 These are identically the cii'cumstances of the present case, and 
 Mr. Lewis, I think, admitted that but for the single circumstance of the 
 defendant in the former case having been a trustee, the cases would be 
 precisely the same. But, as I have ali'eady observed, the trustee in 
 BuiToives V. Lock^ was just as much a stranger to the person to whom he 
 made the representation as Mr. Croucher was a stranger to the present 
 plaintiff. It seems to me that that case is precisely in point, and I do not 
 
 ' G Yes. 174. = 3 T. R. .51. ' 10 Yes, 170.
 
 SECT. Il] SLIM V. CliOUCHER. 563 
 
 liiid tliat it has ever I)(>en questioned. I think it a sound decision, and 
 tliat on the authority of it this appeal ouglit to be dismissed. 
 
 The Lord Justice Knight Bruce. 
 
 Of the merits of this case, witli an exceedingly slight exception which T 
 shall notice, there of coui-se can be no possibility of question. A country 
 whose administration of justice did not afford redress in a case of the 
 present description would not be in a state of civilization. The only point 
 reasonably arguable was, in which of the courts in this country redress 
 should be sought, and it has been said that the redress should be sought in 
 a court of law. It is true that (according to modern practice — a useful and 
 beneficial practice I believe) a court of law would afford redress in the case 
 by means of an action, wdth the assistance of a jury, but the courts of law 
 in this country exercise jurisdiction in these cases by means of a gradual 
 extension of their powers — an extension which I believe has been useful to 
 society ; and we know that that does not deprive the courts of equity of 
 their ancient and undoubted jurisdiction which they exercised before courts 
 of law had enlarged their limits. The observation is familiar — and some 
 of us have heard it used by Lord Eldon — that the jurisdiction not only 
 belongs to this Court, but belonged to it originally. I do not say that 
 effectual redress, if the case had gone before a jury, would not have been 
 obtained. But there is really, in my judgment, no question, except on two 
 points of little importance : one is, that the rate of interest, given by the 
 decree, is 51. per cent, instead of Al. ; the other is, that the plaintiff" has 
 not been directed to make an assignment of the leaseholds. His counsel, 
 however, have expressed his willingness to undertake to execute such an 
 assignment at the reasonable costs of the defendant Mr Croucher. The 
 appellant must pay the costs of this appeal, wliich must be dismissed. 
 
 The Lord Justice Turner. 
 
 I am also of opinion that this decree is right, and I think that if we 
 were to grant any relief upon this appeal, we should be very much narrow- 
 ing an old jurisdiction of this Court, by confining it to cases in which tlie 
 jurisdiction has been exercised. We should, I think, be taking the cases 
 as the measure of the jurisdiction instead of as the examples of that juris- 
 diction. Lord Eldon, in Evans w. BichnelV, puts the case plainly and 
 pointedly thus. He says : — " The question then is, supposing the husband's 
 interest insufficient to satisfy the mortgage, whether there is a personal 
 demand against Bicknell, upon the circumstances of his conduct ; and 
 whether, if there is, it can be enforced in a court of equity;" and he says — 
 " If there is a jurisdiction at law in such cases, there is also a jurisdiction 
 in equity ; and then, if there is a concurrent jurisdiction, there can be no 
 reason for dismissing the bill." He speaks of it as an old head of jurisdic- 
 tion of this Court, not to be displaced by the assumption of the jurisdiction 
 by a court of law, but wliich must remain the jurisdiction of the courts of 
 
 1 G Ves. 174—182. 
 
 3G— 2
 
 .5G4 
 
 CARTEU V. BOEHM. [CHAP. 
 
 equity until it is taken away by statutory enactment. I think, tlierefoi-e, 
 that the autliorities support the decree. I do not mean to say that in all 
 cases the Court will exercise the jurisdiction. It is in the power of the 
 Court to say that it will not do so in particular cases, but I am perfectly 
 satisfied that this is a case in which the jurisdiction ought to be exercised. 
 My opinion, therefore, is that the appeal must be dismissed with costs. 
 
 CARTER V. BOEHM. 
 
 In the King's Bench, Eastee Term, 17GG. 
 
 [Reported in 3 Burrow, 1905.] 
 
 This was an insurance cause, upon a policy underwritten by Mr. 
 Charles Boehm, of interest, or no interest; without benefit of salvage. The 
 insurance was made by the plaintiff, for the benefit of his brother. Governor 
 George Carter. 
 
 It was tried before Lord Mansfield at Guildhall,- and a verdict was 
 found for the plaintiff by a special jury of merchants. 
 
 On Saturday, the 1 9th of April last, Mr. Recorder JSyre, on behalf of 
 the defendant, moved for a new trial. 
 
 His objection was, " that circumstances were not sufiiciently dis- 
 closed." 
 
 A rule was made to shew cause : and copies of letters and depositions 
 were ordered to be left with Lord Mansfield. 
 
 N.B. Four other cases depended upon thi.s. 
 The counsel for the plaintiff, viz. Mr. Morton, Mr. Dunning, and Mr. 
 Wallace, shewed cause on Thursday, the first of this month. But first. 
 
 Lord Mansfield reported the evidence. That it was an action on a 
 policy of insurance for one year; viz. from 16th of October, 1759, to 16th 
 of October, 1760, for the benefit of the Governor of Fort Marlborough, 
 George Carter, against the loss of Fort Marlborough, in the island of 
 Sumatra in the East Indies, by its being taken by a foreign enemy. The 
 event happened : the fort was taken, by Count D'Estaigne within the 
 year. 
 
 The first witness was Cawthorne, the policy-broker, who produced the 
 memorandum given by the governor's brother, the plaintiff, to him : and 
 the use made of these instructions was to shew "that the insurance was 
 made for the benefit of Governor Carter, and to insure him against the 
 taking of the fort by a foreign enemy." 
 
 Both sides had been long in Chancery : and tlie Chancery evidence on 
 both sides was read at the trial.
 
 SECT, ll] CARTER ('. BOEUM. 565 
 
 It was objected, on behalf of tlie defendant, to be a fi'aiid, by conceal- 
 ment of circumstances which ougiit to have been disclosed ; and particularly 
 the weakness of the fort, and the probability of its being attacked by the 
 French : which concealment was oifered to be proved by two letters. The 
 first was a letter from the Governor to his brother Roger Carter, his 
 trustee, the plaintifl" in this cause : the second was from the Governor to 
 the East India Company. 
 
 The evidence in reply to this objection consisted of three depositions in 
 Chancery, setting forth that the Governor had 20,000/. in eflects, and only 
 insured 10,000/. : and that he was guilty of no fault in defending the 
 fort. 
 
 The first of these depositions was Captain Tryon's : which proved that 
 this was not a fort proper or designed to resist European enemies ; but 
 only calculated for defence against the natives of the island of Sumatra; 
 and also that the Governor's office is not military, but only mercantile ; and 
 that Fort Marlborough is only a subordinate factory to Fort St George. 
 
 There was no evidence to the contrary. And a verdict was found for 
 the plaintiff, by a special jury. 
 
 After his lordship had made his report, 
 
 The counsel for the plaintifl" proceeded to shew cause against a new 
 trial. 
 
 They argued that there was no such concealment of circumstances (as 
 the weakness of the fort, or the probability of the attack) as would amount 
 to a fraud sufficient to ^'itiate this contract ; all which circumstances were 
 universally known to every merchant upon the Exchange of Loudon. And 
 all these circumstances they said were fully considered by a special jury of 
 merchants, who are the proper judges of them. 
 
 And Mr. Dunning laid it down as a rule — "That the insured is only 
 obliged to discover facts ; not the ideas or speculations which he may 
 entertain upon such facts." 
 
 They said this insurance was, in reality, no more than a wager; 
 "whether the French would think it their interest to attack this fort; and 
 if they should, whether they would be able to get a ship of war up the 
 river, or not." 
 
 Sir Fletcher Norton and Mr. Recorder Eyre argued, contra, for the 
 defendant, the underwriter. 
 
 They insisted, that the insurer has a right to know as nuich as the 
 insured himself knows. 
 
 They alleged, too, that the broker is the sole agent of the insured. 
 
 These are general, universal principles, in all insurances. 
 
 Then they proceeded to argue in support of the present objection. 
 
 The broker had, they said, on being cross-examined, owned that he did 
 not believe that the insurer would have meddled with the insurance, if he 
 bad seen these two letters. 
 
 -\.ll the circumstances ought to I)e disclosed.
 
 56G CARTER V. BOEHM. [CHAP. V 
 
 Tliis wager is not only "wlietlier the fort shall be attacked;" but 
 " whether it shall be attacked and taken." 
 
 Whatever really increases the risk ought to be disclosed. 
 
 Then they entered into the particulars which had been here kept con- 
 cealed. And they insisted strongly, that the plaintiff ought to have 
 discovered the weakness and absolute indefensibility of the fort. In this 
 case, as against the insurer, he was obliged to make such discovery; 
 though he acted for the Governor. Indeed, a Governor ouglit not, in 
 point of policy, to be permitted to insure at all : but if he is permitted to 
 insure, or will insure, he ought to disclose all facts. 
 
 It cannot be supposed that the insurer would have insured so low, at 
 il. per cent., if he had known of these letters. 
 
 It is begging the question to say, "that a fort is not intended for 
 defence against an enemy." The supposition is absurd and ridiculous. It 
 must be presumed that it was intended for that purpose ; and the pre- 
 sumption was "that the fort, the powder, the guns, &c., were in a good 
 and proper condition." If they were not, (and it is agreed that in fact 
 they were not, and that the Governor knew it,) it ought to have been 
 disclosed. But if he had disclosed this, he could not have got the insurance. 
 Therefore, this was a fraudulent concealment : and the underwriter is not 
 liable. 
 
 It does not foUow, that because he did not insure his whole property, 
 therefore it is good for what he has judged proper to insure. He might 
 have his reasons for insuring only a part, and not the whole. 
 
 Cur. adv. vult. 
 
 Lord Mansfield now delivered the resolution of the Court. 
 
 This is a motion for a new trial. 
 
 In support of it the counsel for the defendant contend, " tliat some 
 circumstances in the knowledge of Governor Carter, not having been 
 mentioned at the time the policy was underwrote, amount to a conceal- 
 ment, which ought, in law, to avoid the policy." 
 
 Tlie counsel for the plaintiff insist, "that the not mentioning these 
 particulars does not amount to a concealment which ought, in law, to avoid 
 the policy; either as a fraud; or, as varying the contract." 
 
 1st. It may be proper to say something, in general, of concealments 
 which avoid a policy. 
 
 2ndly. To state particularly the case now under consideration. 
 
 3rdly. To examine whether the verdict, which finds this policy good, 
 although the particulars objected were not mentioned, is well founded. 
 
 First. Insurance is a contract upon speculation. 
 
 The special facts, upon which the contingent chance is to be computed, 
 lie most commonly in the knowledge of the insured only : the underwriter 
 trusts to his representation, and proceeds upon confidence that he does not 
 keep back any circumstance in liis knowledge, to mislead the underwriter
 
 SECT. Il] CARTER V. BOEIIJI. ' 567 
 
 into a belief tliat tlie circumstance does not exist, and to induce liiui to 
 estimate the risk as if it did not exist. 
 
 The keeping back such circumstance is a fraud, and therefore the policy 
 is void. Although the suppression should happen through mistake, witli- 
 out any fraudulent intention ; yet still tlie underwriter is deceived, and 
 the policy is void; because the risk run is really different from the risk 
 understood and intended to be run at the time of the agreement. 
 
 The policy would equally be void, against the underwriter, if he 
 concealed ; as if he insured a ship on her voyage, which he privately knew 
 to be arrived : and an action would lie to recover the premium. 
 
 The governing principle is applicable to all contracts and dealings. 
 
 Good faith forbids either party, by concealing what he privately 
 knows, to draw the other into a bargain from his ignorance of that fact 
 and his believing the contrary. 
 
 But either party may be iiuiocently silent as to grounds open to both to 
 exercise their judgment upon. Aliiul est celare ; aliud,tacere: neque enim 
 id est celare quicquid reticeas; sed cum quod tu scias, id ignorare emolumenti 
 tui causd velis eos, quorum intersit id scire '. 
 
 This definition of concealment, restrained to the efficient motive and 
 precise subject of any contract, will generally hold to make it void, in 
 favour of the party misled by his ignorance of the thing concealed. 
 
 There are many matters, as to which the insured may be innocently 
 silent; he need not mention what the underwriter knows — Scientia utrin- 
 que par pares contrahentes facit. 
 
 An underwriter cannot insist that the policy is void, because the 
 insured did not tell liim what he actually knew; what way soever he came 
 to the knowledge. 
 
 The insurer need not mention what the underwriter ouglit to know; 
 what he takes upon himself the knowledge of ; or what he waives being 
 informed of. 
 
 The underwriter needs not be told what lessens the risk agreed and 
 understood to be run by the express terms of the policy. He needs not be 
 told general topics of speculation : as, for instance, </).« underurriier is 
 bound to know every cause which may occasion natural perils; us, tlie diffi- 
 culty of the voyage — the kind of seasons — the probability of lightning, 
 hurricanes, earthquakes, &c. He is bound to know every cause which may 
 occasion political perils; from the rujitures of states; from war, and the 
 various operations of it. He is hound to know the probability of safety, fro?n 
 the continuance or return of peace; from the imbecility of the enemy, through 
 the weakness of their councils, or their want of strength, &c. 
 
 ^ This passage, which is taken from Cic. de Off. Lib. ni. c. 13, was also cited by 
 Lord Abmger in Coriifoot v. Foinlte, 6 M. & W. 380, and by Knight Bruce in Ncllhorpe 
 V. liolgate, 1 CoUyer, 221. In Fry on Specific Performance, 2nd edn. p. 306, note 2, 
 where the passage is also cited, it is remarked: — "if the whole is to express the 
 principles of our law, veils must, it is conceived, import not only will but some act 
 consequent thereupon." Ed.
 
 568 CARTER V. BOEHM. [CHAP. V 
 
 If an luulorwiiter insures private ships of war, by sea and on shore, 
 from ports to ports, and places to places, anywhere, he needs not be told 
 the secret enterprises they are destined upon ; because he knows some 
 expedition must be in view ; and from the nature of his contract, without 
 being told, he waives the information. If he insures for three years, he 
 needs not be told any circumstance to shew it may be over in two : or if 
 he insures a voyage, with liberty of deviation, he needs not be told what 
 tends to shew there will be no deviation. 
 
 Men argue differently, from natural phenomena, and political ap- 
 pearances : they have different capacities, different degrees of knowledge, 
 and different intelligence. But the means of information and judging are 
 open to both : each professes to act from his own skill and sagacity; and, 
 therefore, neither needs to communicate to the other. 
 
 The reason of the rule which obliges parties to disclose is to prevent 
 fraud, and to encourage good faith. It is adapted to such facts as vary 
 tlie nature of the contract ; which one privaiely knows, and the other is 
 ignorant of, and has no reason to suspect. 
 
 The question, therefore, must always be " whether there was, under all 
 the circumstances at the time the policy was underwritten, a fair represen- 
 tation ; or a concealment ; fraudulent, if designed ; or, though not 
 designed, varying materially the object of the policy, and clianging the 
 risk understood to be run." 
 
 This brings me, in the second place, to state the case now under 
 consideration. 
 
 The policy is against the loss of Fort Marlborough, from being destroyed 
 by, taken by, or surrendered unto, any European enemy, between the 1st 
 of October, 1759, and 1st of October, 1760. It was underwritten on the 
 9th of May, 1760. 
 
 The underwriter knew at the time that the policy was to indemnify, to 
 that amount, Roger Carter, the Governor of Fort Marlborough, in case the 
 event insured against should happen. The Governor's instructions for the 
 insurance, bearing date at Fort Marlborough, the 22nd of September, 
 1759, were laid before the underwriter. Two actions upon this policy 
 were tried before me in the year 1762. The defendants then knew of a 
 letter written to the East India Company, which the Company offered to 
 put into my hands ; but would not deliver to the parties, because it 
 contained some matters which they did not think proper to be made 
 public. 
 
 An objection occurred to me at the trial, " whether a policy, against 
 the loss of Fort Marlborough, for the benefit of the Governor, was good;" 
 upon the principle which does not allow a sailor to insure his wages. 
 
 But considering that this place, though called a fort, was really but a 
 factory or settlement for trade ; and that he, though called a Governor, 
 was really Init a merchant : considering, too, that the law allows a captain 
 of a ship to insure goods which he has on board, or his share in the ship, if
 
 SECT. II] CARTER V. BOEIIM. 569 
 
 he be a part-owner ; and the captain of a privateer, if he be a part-owner, 
 to insure his share : considering, too, that the objection did not lie, upon 
 any ground of justice, in the mouth of the underwriter, who knew liim to 
 be the Governor at the time he took the premium— and as, with regard to 
 principles of public convenience, the case so seldom happens, (I never saw 
 one before,) any danger from the example is little to be apprehended — I 
 did not tliink myself warranted, upon that point, to nonsuit the plaintiff; 
 especially, too, as the objection did not come from the Bar. 
 
 Tliough this point was mentioned, it was not insisted upon at the last 
 trial ; nor has it been seriously argued, upon this motion, as sufficient, 
 alone, to vacate the policy : and if it had, we are all of opinion " that we 
 are not warranted to say it is void upon this account." 
 
 Upon the plaintiff's obtaining these two verdicts, the underwriters 
 went into a court of equity; where they have had an opportunity to sift 
 everything to the bottom, to get every discovery from the Governor and liis 
 brother, and to examine any witnesses who were upon the spot. At last, 
 after the fullest investigation of every kind, the present action came on to 
 be tried at tlie sittings after last term. 
 
 The plaintiff proved, without contradiction, that the place called 
 Bencoolen, or Fort Marlborough, is a factory or settlement, but no military 
 fort or fortress. That it was not established for a place of arms or defence 
 against the attacks of an European enemy ; but merely for the purpose of 
 trade, and of defence against the natives. That the fort was only intended 
 and built with an intent to keep off the country blacks. That the only 
 security against European ships of war consisted in the difficulty of the 
 entrance and navigation of tlie river, for want of proper pilots. That the 
 general state and condition of the said fort, and of the strength thereof, 
 was, in general, well known by most persons conversant or acquaiuted 
 with Indian affairs, or the state of the Company's factories or settlements; 
 and could not be kept secret or concealed from persons who should 
 endeavour, by proper inquiry, to inform themselves. That there were no 
 apprehensions or intelligence of any attack by the Frencli, until they 
 attacked Nattal in February, 1760. That on the 8th of February, 1760, 
 there was no suspicion of any design by the French. That the Governor 
 then bought, from the witness, goods to the value of 4,000^., and liad 
 goods to the value of above 20,000^, and then dealt for 50,000/. and 
 upwards. That on the 1st of April, 1760, the fort was attacked by a 
 French man-of-war of 64 guns, and a frigate of 20 guns, under the Count 
 D'Estaigne, brouglit in by Dutch pilots ; unavoidably taken ; and after- 
 wards delivered to the Dutch ; and the prisoners sent to Batavia. 
 
 On the part of the defendant. After all the opportunities of inquiry, 
 no evidence was offered, that the French ever had any design upon Fort 
 Marlborough, before the end of March, 1760 ; or that there was the least 
 intelligence or alarm "That they might make the attempt," till the taking 
 of Nattal in the year 1760.
 
 570 CARTER V. BOEHM. [CHAP. V 
 
 They did not offer to disprove the evidence, that the Governor had 
 acted, as in full security, long after the montli of September, 1759 ; and 
 had turned his money into goods, so late as the 8th of February, 17 GO. 
 There was no attempt to shew that he had not lost by the capture veiy 
 considerably beyond the value of the insurance. 
 
 But the defendant relied upon a letter, written to the East India Com- 
 pany, bearing the date the 16th of September, 1759, which was sent to 
 England by the Pitt, captain Wilson, who arrived in May 17G0, together 
 with the instructions for insuring; and also a letter bearing date the 22nd 
 of September, 1759, sent to the plaintiff by the same conveyance, and at 
 the same time, (which letters his Lordship repeated)'. 
 
 Tliey relied too upon the cross-examination of the broker who nego- 
 tiated the policy, " That, in his opinion, these letters ought to have been 
 shewn, or the contents disclosed ; and if they had, the policy would not 
 have been under-written." 
 
 The defendant's counsel contended at the trial, as they have done upon 
 tlus motion, " Tliat tlie policy was void." 
 
 1st. Because tlie state and condition of the fort, mentioned in the 
 Governor's letter to the East India Company, was not disclosed. 
 
 2ndly. Because he did not disclose, that the French, not being in a 
 condition to relieve tlieir friends upon the coast, were more likely to make 
 an attack upon this settlement, rather than remain idle. 
 
 3rdly. That he had not disclosed his having received a letter of the 
 4th of February, 1759, from which it seemed tliat the French had a design 
 to take this settlement, by surprise, the year before. 
 
 They also contended, that the opinion of the broker was almost de- 
 cisive. 
 
 The whole was laid before the jury; who found for the plaintiff. 
 
 Thirdly. It remains to consider these objections, and to examine 
 " Whether this verdict is well founded." 
 
 To tliis purpose, it is necessary to consider the nature of the contract, 
 at the time it was entered into. 
 
 The policy was signed in Mai/, 1760. Tlie contingency was, "Whether 
 Fort Marlborough was or would be taken, by an Eui'opean enemy, between 
 October, 1759, and October, 1760." 
 
 ' The former of them notifies to the East India Company, that the French had, the 
 preceding year, a design on foot, to attempt taking that settlement by surprise ; and 
 that it was very probable they might revive that design. It confesses and represents 
 the weakness of the fort; its being sadly supplied with stores, arms, and ammunition; 
 and the impracticability of maintaining it (in its then state) against an European 
 enemy. 
 
 The latter letter (to his brother) owns that be is "now more afraid than formerly 
 that the French should attack and take the settlement; for, as they cannot muster 
 a force to relieve their friends at the coast, they may, rather than remain idle, pay us 
 a visit. It seems they had such an intention last year." And therefore he desires his 
 brother to get an insurance made upon his stock there.
 
 SECT. Il] CARTER V. BOEHM. 571 
 
 The computiition of the risk depended upon the cliance, "Wlietlier any 
 European power would attack the place by sea." If they did, it was in- 
 capable of resistance. 
 
 The underwriter at London, in May, 17G0, could judge much better of 
 the probability of the contingency, than Governor Carter could at Fort 
 Marlborough, in September, 1759. He knew the success of the operations 
 of the war in Europe. He knew what naval force the English and 
 French had sent to the East Indies. He knew, from a comparison of that 
 force, whether the sea was open to any such attempt by the French. He 
 knew, or might know, every thing which was known at Fort Marlborough 
 in September, 1759, of the general state of aflairs in the East Indies, or 
 the particular condition of Fort Marlborough, by the ship which brought 
 the orders for the insurance: He knew that ship must have brought many 
 letters to the East India Company ; and, particularly, from tlie Governor. 
 He knew what probability there was of the Dutch committing or having 
 committed hostilities. 
 
 Under these circumstances, and with this knowledge, he insures against 
 the general contingency of the place being attacked by an European 
 power. 
 
 If there had been any design on foot, or any enterprise begun, in 
 September, 1759, to the knowledge of the Governor, it would have varied 
 the risk understood by the underwriter ; because, not being told a par- 
 ticular design or attack then subsisting, he estimated the risk upon 
 the foot of an uncertain operation, which might or might not be at- 
 tempted. 
 
 But the Governor had no notice of any design subsisting in Sept. 
 1759. There was no such design, in fact : the attempt was made without 
 premeditation, from the sudden opportunity of a favourable occasion, by 
 the connivance and assistance of the Dutch, which tempted Count 
 D'Estaigne to break his parol. 
 
 These being the circumstances under which the contract was entered 
 into, we shall be better able to judge of the olyections upon the foot of 
 concealment. 
 
 The first concealment is, that he did not disclose the condition of the 
 place. 
 
 The underwriter knew the insurance was for the Governor. He knew 
 the Governor must be acquainted with the state of the place. He knew 
 the Governor could not disclose it, consistent with his duty. He knew the 
 Governor, by insuring, ajjprehended at least tlie possibility of an attack. 
 With this knowledge, without asking a question, he underwrote. 
 
 By so doing, he took the knowledge of the state of the place upon 
 himself. It was a matter as to which he might be informed, various 
 ways : it was not a ^natter within tlie private knowledge of the Governor 
 only. 
 
 But, not to rely upon tliat. Tlie utmost which can Ije contended is.
 
 572 CARTER V. BOEHM. [CHAP. V 
 
 that the underwriter trusted to tlie fort being in the condition in whicli it 
 ought to be : in like manner, as it is taken for granted, that a sJiip in- 
 sured, is sea-worthy. 
 
 Wliat is that condition? all the witnesses agree "That it was only to 
 resist the natives, and not an European force." The policy insures against 
 a total loss ; taking for granted " That if the place was attacked, it would 
 be lost." 
 
 The contingency therefore which the underwriter has insured against 
 is, "Whether the place would be attacked by an European force;" and 
 not, " Whether it would be able to resist such an attack, if the ships could 
 get up the river." 
 
 It was particularly left to the jury, to consider, "Whether this was the 
 contingency in the contemplation of the parties :" they have found that it 
 was. 
 
 And we are all of opinion, " That, in this respect, their conclusion is 
 agreeable to the evidence." 
 
 In this view, the state and condition of the place was material only in 
 case of a land attack by the natives. 
 
 The second concealment is — His not having disclosed, that, from the 
 French not being able to relieve their friends upon the coast, they might 
 make tliem a visit. 
 
 This is no part of the fact of the case : it is mere speculation of the 
 Governor's from the general state of tlie war. The conjecture was dictated 
 to him from his fears. It is a bold attempt, for the conquered to attack 
 the conqueror, in his own dominions. The practicability of it, in this case, 
 depended upon the English naval force in those seas ; whicli the under- 
 writer could better judge of at London in May, 1760, than the Governor 
 could at Fort Marlborough in September, 1759. 
 
 The third concealment is — That he did not disclose the letter from Mr. 
 Winch, of the 4th of February, 1759, mentioning the design of the French, 
 the year before. 
 
 What the letter was ; how he mentioned the design, or upon what 
 authority he mentioned it ; or by whom the design was supposed to be 
 imagined, does not appear. The defendant has had every opportunity of 
 discovery ; and nothing has come out upon it, as to this letter, which 
 he thinks makes for his purpose. 
 
 The plaintiff offered to read the account Winch wrote to the East India 
 Company: which was objected to; and therefore not read. The nature 
 of that intelligence therefore is very doubtful. But taking it in the 
 strongest light, it is a report of a design to surprise, the year before ; but 
 then dropped. 
 
 This is a topic of mere general speculation ; which made no part of 
 the fact of the case upon which the insurance was to be made. 
 
 It was said. If a man insured a ship, knowing that two privateers 
 were lying in her way, without mentioning that circumstance, it would be
 
 SECT. Il] CARTER V. BOEHM. 673 
 
 a fraud ; I agree to it. But if lie knew that two privateers had boon 
 there the year before, it would be no fraud, not to mention that circum- 
 stance : because, it does not follow that they will cruise this year at the 
 same time, in the same place : or that they are in a condition to do it. If 
 the circumstance of "this design laid aside" had been mentioned, it would 
 have tended rather to lessen the risk, than increase it : for, the design of 
 a surprise which has transpired, and been laid aside, is less likely to be 
 taken up again ; especially by a vanquished enemy. 
 
 The jury considered the nature of the Governor's silence, as to these 
 particulars : they thought it innocent ; and that omission to mention 
 them did not vary the contract. And we are all of opinion, "That, in 
 this respect, they judged extremely right." 
 
 There is a silence, not objected to at the trial nor upon this motion ; 
 which might witli as much reason have been objected to, as the two last 
 omissions ; rather more. 
 
 It appears by the Governor's letter to the plaintiff, " That he was 
 principally apprehensive of a Butch war." He certainly had, what he 
 thought, good grounds for this apprehension. Count D'Estaigne being 
 piloted by the Butch, delivering the fort to the Butch, and sending the 
 prisoners to Batavia, is a confirmation of those grounds. And probably, 
 the loss of the place was owing to the Butch. The French could not have 
 got up the river without Butch pilots: and it is plain, the whole was con- 
 certed with them. And yet, at the time of underwriting the policy, 
 there was no intimation about the Butch. 
 
 The reason why the counsel have not olijected to his not disclosing the 
 grounds of this apprehension, is, because it must have arisen from political 
 speculation, and general intelligence : therefore, they agree it is not 
 necessary to communicate such things to an underwriter. 
 
 Lastly. Great stress was laid upon the opinion of the broker. 
 
 But we all think the jury ought not to pay the least regard to it. It 
 is mere opinion ; wliich is not evidence. It is opinion after an event. It 
 is opinion without the least foundation from any previous precedent or 
 usage. It is an opinion which, if rightly formed, could only be drawn 
 from the same premisses from which the court and jury were to determine 
 the cause : and therefore it is improper and irrelevant in the mouth of a 
 witness. 
 
 There is no imputation upon the Governor, as to any intention of 
 fraud. By the same conveyance, which brought his orders to insure, he 
 wrote to the company every thing which he knew or suspected : he desired 
 nothing to be kept a secret, which he wrote either to them or his brother. 
 His subsequent conduct, down to the 8th of February, 1 760, shewed that 
 he thought the danger very inqirobable. 
 
 The reason of the rule against concealments is, to prevent fraud and 
 encourage good faith. 
 
 If the defendant's objections were to prevail, in the present case, the 
 rule would be turned into an instrument of fraud.
 
 574 LONDON ASSURANCE V. MANSEL. [CHAP. V 
 
 The undei'writor, liero, knowing the Governor to lie acquainted witli the 
 state of the place ; knowing that he apprehended danger, and must have 
 some ground for his apprehension ; being told nothing of either ; signed 
 this policy, without asking a question. 
 
 If the objection "That he was not told " is sufficient to vacate it, lie 
 took the premium, knowing the policy to be void ; in order to gain, if the 
 alternative turned out one way ; and to make no satisfaction, if it turned 
 out the other : lie drew tlie Governor into a false confidence, "That, if 
 tlie worst should happen, he had provided against total ruin ;" kno^\'ing, 
 at the same time, " That the indemnity to which the Governor trusted, was 
 void." 
 
 There was not a word said to him of the aflfairs of India, or the state 
 of the war there, or the condition of Fort Marlborough. If lie thouglit 
 tliat omission an objection, at the time, he ought not to have signed the 
 policy, with a secret reserve in his own mind to make it void : if he dis- 
 pensed with the information, and did not think this silence an objection 
 then ; he cannot take it up now, after the event. 
 
 What has often been said of the Statute of Frauds may, with more 
 propriety, be applied to every rule of law, drawn from principles of natural 
 equity, to prevent fraud — "That it should never be so turned, construed, 
 or used, as to protect, or be a means of fraud." 
 
 After the fullest deliberation, we are all clear that the verdict is well 
 founded ; and there ought not to be a new trial : consequently, tliat the 
 rule for that purpose ouglit to be discharged. 
 
 Rule discharged. 
 
 LONDON ASSURANCE v. MANSEL. 
 
 In the High Court of Justice, March 1, 1879. 
 
 [Beporied in Law Reports, 11 Chancery Division, 363.] 
 
 This was an action by the plaintiffs, who were duly incorporated l)y 
 the name of "The London Assurance," and were empowered to grant 
 assurances on lives, to set aside an agreement to grant a policy of life 
 assurance to the defendant. 
 
 On the 16th of August, 1878 , the plaintiffs, on the application of the 
 defendant's solicitor, sent him forms of proposal for Life assurance, and on 
 tlie 20th of August, 1878, the defendant left with the plaintiffs at their 
 office a proposal for assurance on liis life for 10,000Z. filled up on one of the 
 plaintiffs' forms of proposal, and signed by the defendant. The ques-
 
 SECr. Il] LONDON ASSURANCE V. MANSEI,. 575 
 
 tions and answers contained in this proposal, so far as material, were 
 as follows : — 
 
 " Yes." 
 
 "Not to my knowledge." 
 
 " Insured now in two 
 offices for 16,000/. at ordi- 
 
 QuESTioNs. Answers 
 
 "Are you now and lia\e you al-waj's been \ 
 of temperate habits?" . . . . ./ 
 
 " State if there be any other material "' 
 circumstance aflecting your past or present 
 state of health or habits of life to whicii the 
 foregoing questions do not extend?" 
 
 "Has a proposal ever been made on your ^ 
 life at any other office or offices 1 If so, 
 where ?......, 
 
 "Was it accepted at the ordinary pre- f nary rates. Policies effiscted 
 mium, or at an increased premium, or de- last year." 
 clined?" ' 
 
 At the foot of the proposal the defendant signed the following declara- 
 tion : " I declare that the above written particulars are true, and I agree 
 that this proposal and declaration shaU be the basis of the contract be- 
 tween me and the London Assurance." 
 
 On the same day the defendant had an interview ^vith the medical 
 officer of the plaintiffs, and in reply to his inquiries gave substantially the 
 same answers as those in the proposal before stated. 
 
 The plaintiffs being, as they alleged, satisfied with and relying upon 
 the said proposal, and with the report of their medical officer, and with 
 the answers they had received from two friends of the defendant to whom 
 he had referred them, sent to the defendant's solicitor a written accept- 
 ance of the proposal for an assurance of 10,000^. on the defendant's life, 
 and, on the 23rd of August, 1878, received from him a cheque for 
 the first year's premium, and on the 21th of August, 1878, the plaintiffs 
 sent him the usual certificate as to the assurance being effected. 
 
 The plaintiffs alleged that, shortly after the last-mentioned date, they 
 discovered that, though the defendant's life had been assured for 10,000/. 
 in the Rock Life Assurance Company, and also for 6000/. in the Equity 
 and Law Life Assurance Society, the last-named assurance society had in 
 November, 1877, when the defendant applied for a further assurance of 
 3000/., decided not to increase the amount at risk on his life ; also that 
 the defendant had shortly afterwards made proposals to the Scottish 
 Equitable Society and to the Crown Insurance Society, who had respec- 
 tively declined his proposals, to the North British and Mercantile In- 
 surance Society, which proposal was withdrawn, and to the Liverpool, 
 London, and Globe Company, by whom the proposal was not accepted ; 
 that in June, 1878, the English and Scottish Law Life Assurance Associa- 
 tion, after accepting a proposal for an assurance of 5000/. on the life of 
 the defendant, had refused to proceed with it on learning tiiat the Equity
 
 576 LONDON ASSURANCE V. MANSEL. [CHAP. V 
 
 and Law Life Society luid declined the further assurance of the defendant's 
 life; also, that in August, 1878, the defendant had applied for assurances 
 on his life to the Clerical Medical and General Life Assurance Society, to 
 the Scottish Amicable Assurance Society, and the Law Life Assurance 
 Society, but that each of the said offices had declined his proposals. 
 
 The plaintiflPs alleged that they thereupon determined not to proceed 
 with the assurance, and that their solicitors wrote to the defendant's 
 solicitor to that eflect, and sent a cheque for the amount of the premium, 
 which was returned by the defendant. 
 
 The plaintiffs then brought their action, setting out in their statement 
 of claim the facts before stated, and alleging that it was the duty of the 
 defendant to have informed them that his life had been refused by the 
 said several offices, that such fact was a very material fact in a contract 
 of life assurance, and that the plaintiffs would not have entertained the 
 defendant's proposal for assurance had he informed them that his life 
 had been refused by other offices, which the defendant had concealed. 
 
 The plaintiffs claimed a declaration that the acceptance by the plaintiffs 
 of the defendant's proposal for assurance on his life foi" 10,000Z., and the 
 contract by the plaintiffs for the assurance on the life of the defendant, 
 were void. 
 
 The defendant, by his statement of defence, admitted the plaintiffs' 
 allegations as to the proposal and as to the two policies that had been 
 effected, also that the Equity and Law Life Society had decided not to 
 increase their risk, the reason being that they considered their risk 
 sufficiently large. With regard to the other proposals, the defendant 
 stated as follows : — 
 
 "The defendant admits that proposals were made to the Clerical, 
 Medical, and General Life Assurance Society, the Scottish Amicable Life 
 Assurance Society, and the Law Life Assurance Society, for an assurance on 
 his life, and such proposals were declined, without any medical examination." 
 
 In paragraph 15 he stated as follows: — "The defendant is not and 
 never has been of intemperate habits of life, and although proposals for 
 assurances on the defendant's life had been made to and declined by 
 the several offices in the statement of claim mentioned, the defendant's 
 life was never rejected by an office, but was passed as a first>class life by 
 every medical officer who examined him." The defendant also stated that 
 the English and Scottish Law Life Assurance Society passed his life as a 
 first-class life, but they reserved the right of declining to complete the 
 transaction at any time before the receipt of the premium ; but that, 
 having learned that the Equity and Law Life Assurance Society had 
 decided not to increase their risk on the defendant's life, and would not 
 take any part in the new risk, exercised their right of declining to com- 
 plete the transaction." 
 
 The defendant submitted that there had been no concealment such as 
 to vitiate the contract.
 
 SECT. Il] LONDON ASSURANCE V. MANSEL. 577 
 
 TKe case was heard on motion for judgment on admissions in the 
 pleading. 
 
 Benjamin, Q.C., Dnivy, Q.C., and Naldcr, for the plaintiffs : — 
 
 The plaintiffs in this case are entitled to set aside the contract on the 
 ground that the defendant in his answers to the questions in the proposal, 
 which by his admission form the basis of tlie contract, concealed the fact 
 that his life had been declined by several other offices. Wlien the state- 
 ments in a proposal for life assurance are untrue in fact, that is sufficient 
 to avoid the contract : Macdonald v. Law Union Fire and Life. Insurance, 
 Company '. 
 
 Chittij, Q.C., and Levett, for the defendant : — 
 
 The plaintiffs in this case have entered into a contract on the basis 
 of negotiations which they admit are true but whicii they allege 
 are not sufficient, because tliey have since ascertained some other fact.'? 
 which they say are material. But this is not sufficient to invalidate a 
 contract for life assurance. In Lirulenau v. Desborough', though it was 
 held that it was the duty of a party effecting an assurance on life or pro- 
 perty to communicate to the underwriter all material facts within his 
 knowledge touching the subject-matter of the insurance, yet it was laid 
 down that it was a question for the jury whether any particular fact was 
 or was not material. The same principle was recognised in Morrison v. 
 Miispratt'. Here we submit that everything that was mateiial was dis- 
 closed, and though the question might have been more fully answered by 
 the defendant, still the plaintiffs were satisfied with the answer witjiout 
 inquiring further whether the defendant's life had been declined by any 
 otlier office. They cannot now raise the question and come to the Court 
 to set aside the contract. 
 
 Jessel, M.R. : — 
 
 The action in this case is to set aside an agreement for assurance for 
 life on the ground of concealment of a material fact in effecting the 
 assurance. 
 
 The first question to be decided is, what is the principle on which the 
 Court acts in setting aside contracts of assurance ? As regards the 
 general principle I am not prepared to lay down the law as making any 
 difference in substance between one contract of assurance and anotlier. 
 Whether it is life, or fire, or marine assurance, I take it good faith is re- 
 quired in all cases, and, though there may be certain circumstances from 
 the peculiar nature of marine insurance which require to he disclosed, and 
 which do not apply to otlier contracts of insurance, that is rather, in my 
 opinion, an illustration of the application of the principle than a distinction 
 in principle. 
 
 But I think tlie law has been laid down very often, and I am going to 
 
 1 Law Hep. 9 Q. B. 3'2ft. = 8 B. & C. 586. » 4 Bing. 60. 
 
 F. 37
 
 578 LONDON ASSUKANCE I'. MANSEL. [CHAP. V 
 
 refer to two or three statements of it, whicli at all events are l)indiiig 
 ou me. 
 
 In the case of Dahjlish v. Jarrie.\ a case which had nothing to do witli 
 insurance, but -wliich referred to the principles on which a special injunction 
 ought to be granted ex parte, Lord Cranworth, then the Lord Commissioner 
 Rolfe, says this : " Upon one point it seems to me proper to add thus 
 much, namely, that the application for a special injunction is very much 
 governed by the same principles which govern insurances, matters which 
 are said to require the utmost degree of good faith, 'uberrima fides.' In 
 cases of insurance a party is required not only to state all matters within 
 liis knowledge, which he believes to be material to the question of the 
 insurance, but all which in point of fact are so. If he conceals anytliing 
 that lie knows to be material, it is a fraud : but besides that, if lie 
 conceals anything that may influence the rate of premium which the 
 underwriter may require, although he does not know that it would have 
 that effect, such concealment entirely vitiates the policy." 
 
 Here it is to be observed that he says, "In cases of insurance;" lie 
 does not say one kind of insurance or another kind of insurance, but it is 
 the more valuable because he is stating the law as settled as a mere illus- 
 tration of the similar law which he considers to apply to applications for 
 special injunctions when a man comes for one ex parte. If lie conceals 
 anything he knows to be material, it is fraud, and if he conceals anything 
 that may influence the rate of premium, although he does not know it, it 
 still vitiates the policy. 
 
 In another case, which again is not directly in point, turning on a 
 contract, the case of Maens v. IleyworiV, we have a dictum of Baron 
 Parke. It was a case of ordinary mercantile contract, not of an in- 
 surance contract. Baron Parke says : " The case of a jnolicy of insurance 
 does not appear to me to be analogous to the present ; those instruments 
 are made upon an implied contract between the parties that everything 
 material known to the assured should be disclosed by them. This is the 
 basis on which the contract proceeds, and it is material to see that it is 
 not obtained by means of untrue representation or concealment in any 
 respect ; " that means, of course, concealment in any material respect. 
 
 Then in the case, which was an action on a policy of insurance, of 
 Lindenau v. Deshormigli^, Lord Tenterden says : " Then it is said that the 
 party is not bound to do more than answer the questions proposed, unless 
 he can be charged with some fraudulent concealment. Admitting this 
 not to fall within any of the specific questions, which is not by any means 
 clear, still the general question put by the oflice requires information of 
 every fact which any reasonable man would think material." That 
 passage shews that the non-answering of a specific question in Lord 
 Tenterden's opinion would amount to concealment if the man knew the 
 fact and was able to answer it. 
 
 ' 2 Mac. & G. 231, 243. - 10 M. ct W. 147, 157. ' S B. &. C. 5!)1.
 
 SECT, a] i.oxnox assurance v. manski,. 579. 
 
 Mr. Ju.stice l>ayley .says' : "I tliiuk that in all cases of insurance"' — 
 then he goes on to add wliat Lord Cranworth did not add, but which Iio 
 meant — "whether on ships, houses or lives, the underwriter should lie 
 informed of every material circumstance witliin the knowledge of tlie 
 assured ; and that the proper question is, wliether any particular circum- 
 stance was in fact material, and not whether the party believed it to he 
 so. The contrary doctrine would lead to frequent suppression of informa- 
 tion, and it would often be extremely difficult to shew that the party 
 neglecting to give the information thought it material. But if it be held 
 that all material facts must be disclosed, it will I)e the interest of the 
 assured to make a full and fair disclosure of all the information within 
 their reach." Then Mr. Justice Littledale says : " I am of the same 
 opinion. It is the duty of the assured in all cases to disclose all material 
 facts within their knowledge. In cases of life insurance certain specilic 
 questions are proposed as to points aftecting in general all mankind. But 
 there may be also circumstances aftecting particular individuals whicli are 
 not likely to be known to the assurers, and which, had they been known, 
 would no doubt have been made the subject of specitic inquiries." He puts 
 it more strongly, therefore, when it is a specific inquiry. 
 
 Now I come to the facts of the case, which certainh- appear to roe to 
 be very plain and clear indeed. The office of the London Assui'ance asks 
 these questions : " Has a proposal ever been made on your life at any 
 other office or offices ; if so, where ? AVas it accepted at the ordinary 
 jireniium, or declined V and there is an agreement at the end, " That this 
 proposal and declaration shall be the basis of the contract l)et\veen the 
 assured and the company." Here is the answer : "Insured now in two 
 offices for 16,000Z. at ordinary rates. Policies effected last year." It is to 
 be observed that the man proposing the assurance, who knows the facts, 
 does not answer the question. The question was, " Has a proposal been 
 made at any office or offices; if so, where?" He does not state, "I pro- 
 posed to half a dozen offices," which was the truth, but simply says, 
 "Insured now in two offices," which of course must have been intended to 
 I'epresent an answer, and therefore would mislead the persons recei\ing it, 
 who did not look at it with the greatest attention, into the belief that he 
 was insured in two offices, and tliat they were the only proposals that he 
 had made. "Was it accepted at the ordinary premiums or an increased 
 premium V His answer is, "At ordinary rates." That is the answer 
 to the second branch of the inquiry, but he has not answered the 
 question, " or declined 1 " The inference, therefore, which must have been 
 intended to be produced on the mind of t!ie person reading the answer 
 was that it had not been declined. And in my opinion that is the fair 
 meaning of the answer, and the assured is not to be allowed to say, "I did 
 not answer the question." But if it were so, it would make no difference, 
 because if a man purposely avoids answering a question, and tliei-eby does 
 
 1 8 B. & C. 591. 
 
 ■A7--2
 
 580 LONDON ASSURANCE V. MANSEL. [CHAP. V 
 
 not state a fact wliioh it is liis duty to communicate, tliat is concealment. 
 Concealment properly so called means non-disclosure of a fact which it is 
 a man's duty to disclose, and it was his duty to disclose the fact if it was 
 a material fact. 
 
 The question is whether this is a material fact ^ I .should say, no 
 human being acquainted with the practice of companies or of insurance 
 societies or underwriters could doubt for a moment that it is a fact 
 of great materiality, a fact upon which tlie offices place great reliance. 
 They always want to know what other offices have done with respect to 
 the lives. But in this case there could be no question as to its materiality. 
 In the first place we have this in the answer : "The defendant admits that 
 proposals were made to the Clerical, Medical, and General Life Assurance 
 Society, the Scottish Amicable Life Assurance Society, and the Law Life 
 Assurance Society for an assurance on his life, and such proposals were 
 declined." There are three proposals as admitted by the answer declined 
 in the very words of the question ; and then he goes on : — [His Lordship 
 then stated paragraph 1 5 of the answer, and added : — ] We have an 
 admission by the defendant that no less than five insurance offices had 
 declined to accept his life. 
 
 Now, to suppose that any one who knows anything about life insurance, 
 that any decent special juryman could for a moment hesitate as to the 
 proper answer to be given to the inquiry, when you go to the insurance 
 office and ask for an insurance on your life, ought you to tell them that 
 your proposals had been declined by five other assurance offices % is, I say, 
 quite out of the question. There can be but one answer — that a man is 
 bound to say, " My proposals have been declined by five other offices. I 
 will give you the reasons, and shew you that it does not afiect my life," as 
 lie admits it to be by this answer ; but of that the office could judge. 
 There can be no doubt, as a proposition to be decided by a jury, that such 
 a circumstance is material. But in fact I have elements here admitted on 
 the pleadings for deciding that question quite irrespective of the ordinary 
 knowledge of the practice of mankind in respect of these matters which 
 is to be imputed to a good special juryman, because I have here two 
 things admitted, first of all that the proposal which forms the basis of the 
 contract asks a question — Has a proposal been declined '? 
 
 Now where it is to form the basis of the contract it is material, 
 because, as was held in a case in the House of Lords of Henderson v. 
 Fitzgerald^, where it is part of the contract, the other side cannot say it is 
 not material. So here we have the proposal as the basis of the contract. 
 It is impossible for the assured to say that tlie question asked is not a 
 material question to be answered, and that the fact which the answer 
 would bring out is not a material fact. 
 
 Further, we have this, that within the defendant's own knowledge the 
 English and Scottish Law Life Assurance Society having accepted his life, 
 
 ' 4 H. L. C. 484.
 
 SECT. Il] FLIGHT V. BUUTH. 581 
 
 which liad been duly passed by their medical officer as a first-class life 
 after examination, and merely reserving a right to decline, when they 
 found that one other office, not five, but one, had declined the life, or 
 rather the proposal, at once witlidrew from their acceptance and declined 
 his proposal. So that the defendant had the strongest reasons for believing 
 from actual knowledge that the fact of a proposal having being declined 
 was a most material circumstance, and would have the greatest eflect on 
 the mind of the proposed assurers. 
 
 It seems to me a very plain and clear case, and that the plaintiffs are 
 consequently entitled to judgment. 
 
 The order will be — The plaintiffs being willing and hereby ofl'ering to 
 return the premium, declare that the acceptance by the plaintiffs of 
 the defendant's life was void and of no effect, that they were not bound 
 to deliver the policy, and that the contract be delivered up to be 
 cancelled. 
 
 FLIGHT V. BOOTH. 
 In the Common Pleas, November 24, 1834. 
 
 {Reported in 1 Bingham's New Cases, 370.) 
 
 This cause having, by consent of parties, been referred to arbitration 
 under an order of nisi prius, the arbitrator found, in a special award. 
 
 That the declaration in this action was for money paid by the plaintiff 
 for the defendant's use, and for money received by the defendant to the 
 plaintiff's use, to which the general issue was pleaded ; and the action was 
 brought to recover the sum of 100/. paid by the plaintiff as a deposit on 
 the purchase by auction of certain premises situated in the Piazza, Covent 
 Garden, and held under a lease from the Duke of Bedford. The premises 
 were described in the printed particulars of sale, on the back of which the 
 plaintiff had signed the memorandum of the contract, as calculated for an 
 extensive business in carpets, haberdashery, drapery, paper, floor-cloth, 
 upholstery, grocery, tea trade, or coach-building. It was also stated in the 
 same particulars, that, by a clause in the lease, " the lessee is to insure the 
 premises for 3000/., and no offensive trade is to be carried on ; they cannot 
 be let to a coffee-house keeper, or working hatter." Printed conditions of 
 sale followed ; and by the sixth it was provided, that if, through any 
 mistake, the estate should be improperly described or any error or misstate- 
 ment be inserted in that particular, such error or misstatement should not 
 vitiate the sale, but the vendor or purchaser, as the case might happen, 
 should pay or allow a proportionate value according to the average of the 
 whole purchase-money, as a compensation either way. By the last condi-
 
 582 FLIGHT V. BOOTH. [CHAl'. V 
 
 tiou it was, among other things, provided, that if the purchaser sliould 
 noi,'lcot or fail to complete tlie purcliase within a day, which had expired 
 previously to the commencement of the action, the deposit money should 
 become forfeited to tlie vendor. The sale took place, and tlie contract was 
 signed, on the IGth of May, 1833. On the 10th of June an abstract of 
 title was delivered by tlie vendor's solicitor to the plaintiff's, which con- 
 tained the following note of the proviso hereinafter set out, — " proviso for 
 re-entry in case of non-payment of I'ent, or non-performance of covenants, 
 or carrying on any particular trade without a licence for that purpose 
 under the hand of the Duke of Bedford first had and obtained." At tlie 
 date of the sale and contract the lease was a valid and subsisting one. 
 Tlie plaintiff's solicitor made several objections upon the abstract to the 
 completion of the purchase, wliich tlie arbitrator found to have been either 
 insufficient in tliemselves or satisfactorily removed ; but the plaintiff's 
 solicitor never required to see the lease. And on the 1.5th of July the 
 plaintiff, so far as in him lay, rescinded the contract ; and having 
 demanded back again the deposit, without success, brouglit the action in 
 question. 
 
 At the trial of the cause tlie lease was produced, and appeared to 
 contain the following proviso : — " Provided always, that if the yearly rent 
 hereby reserved, or any part thereof, shall be unpaid for fifteen days next 
 after any of the said days of payment ; or if, at any time during the 
 continuance of the said term, the trades or businesses of a brewer, baker, 
 sugar-baker, vintner, victualler, butcher, tripe-seller, poulterer, fishmonger, 
 cheesemonger, fruiterer, herb-seller, coffee-house keeper, distiller, dyer, 
 brazier, smith, tinman, farrier, dealer in old iron, pipe-burner, tallow- 
 chandler, soap-boiler, working Iiatter, or any or either of them, shall be 
 used or exercised in or upon the said demised premises, or any part 
 thereof; or any auctions or public sales of liousehold good.s, or otlier 
 things, be made in or upon the said premises or any part thereof ; or the 
 same be used as a shop or place for the sale of coals, potatoes, or any 
 provisions whatever ; or if the lessees, tlieir executors, administrators, or 
 assigns, shall, at any time during the last seven years of the said term, 
 assign or set over this indenture, or any part of the premises, and their 
 estate and interest therein, without a licence for that purpose under the 
 hand of the said duke, Ids heirs or assigns ; or on breach or non- 
 performance of any or either of the covenants and agreements herein- 
 before contained ; then and thenceforth, and in either of such cases, it 
 shall be lawful for the said duke, his lieirs and assigns, to re-enter." 
 
 It was not proved before the arbitrator that the plaintiff, at the time 
 of the sale, or of the signing tlie contract, had ever seen tlie lease or heard 
 it read, or that he or his solicitor were aware of the terms of the proviso 
 until the day of the trial. Evidence was offered, on the part of the 
 defendant, to prove that the lease was produced at the sale, and that the 
 proviso had been publicly read. That evidence was objected to on the
 
 SECT. II] FLIGHT V. BOOTH. 583 
 
 part of the plaiiititi"s counsel ; the ai-bitrator received it only to negative 
 any wilful concealment or misi-epresentation by the defendant of the 
 terms of the lease ; and found that none such was proved against him. 
 No claim was made by the defendant, liefore the arliitrator, for damages 
 for the non-performance of tlie jilaintiff s contract, nor any attempt to 
 compel a specific performance. 
 
 Upon these facts, the arbitrator found that the plaintiS" had good 
 cause of action against the defendant, and ordered that tlie verdict sliould 
 be reduced to the sum of 100^.; for whicji sum, and the costs of the cause 
 when taxed, he directed that the plaintifT should be at liberty to sign 
 judgment on the sixth day of Trinity term then next ensuing, and not 
 before. And if the facts above set out did not authori.se the plaintifl', in the 
 o])inion of the Court, to rescind the contract of sale, then the arbitrator 
 directed the verdict to be entered for the defendant, and that he should be 
 at liberty to enter up the judgment for himself. 
 
 Taddi/, Seij., obtained a rule nisi to enter up judgment for the 
 defendant under this award, contending, that if there had been any 
 misdescription of the premises at the auction, it was a misdescription 
 originating from inadvertence, and not from fraud or any intention to 
 mislead ; and that, under such circumstances, tliough the plaintiff might 
 require compensation for any difference in value between the representa- 
 tion and the reality, yet he could not rescind the contract ; Duke of 
 Norfolk V. Wortliij^, Wriylit v. Wilson', Slewarf. v. Allision''\ Trower v. 
 Newcombe *. 
 
 Wilde, Serjt., shewed cause. Where the misdescription, whether pro- 
 ceeding from intention or inadvertence, is such that the purchaser finds 
 himself in possession of a thing materially difiering from that which he 
 proposed to buy, he is at lilierty to rescind the contract; Jones v. Edney^ 
 Waring v. Hoggart'^, Coverleij v. Bm-relP, Brecdey v. Collins'. Here the 
 plaintiff could never have inferred from the particulars prohibiting offen- 
 sive trades and the business of coffee-house keeper and hatter, that he 
 should be prevented from selling fruit or vegetables in a district devoted 
 to that line of business. There is no principle upon which, in such a case, 
 compensation can be calculated ; Sherwood v. iiobius^. The object of the 
 purchaser is entirely defeated, and he can only be indemnified by rescind- 
 ing the contract. In Tompkins v. White'"', Lord Ellenborough said, "A 
 little more fairness on the part of auctioneers in the forming of their 
 particulars would avoid all these inconveniences. There is ahvays eitlier a 
 suppression of the fair description of the premises, or there is something 
 stated which does not belong to them ; and, in favour of justice, consider- 
 ing how little knowledge the parties have of the things sold, much more 
 particularity and fairness might be expected of them." In 'Hie Duke of 
 
 1 1 Campb. 337. - 1 Mood. & Bob. 207. ' 1 Mer. 2G. ■• 3 Mer. 704. 
 5 3 Campb. 285. « 1 By. <S Mood. 39. ' 5 B. & Aid. 257. 
 
 » 1 Young. 317. " 1 M. (t M. 1!)4. '» 3 Smith, Keji. 439.
 
 584 FLIGHT V. BOOTH. [CHAP. V 
 
 Norfolk V. Worthy the jury found tliat tlie misdescription was wilful. 
 Trower v. Netvcmnhe only decided that bona fides is not to be impeached 
 by the mere babble of an auction room. But Stewart v. AUiston is in 
 favour of the plaintill". 
 
 Tadili/ and Creaswell in support of the rule. As to the possibility of 
 the plaintiff's intending to deal in vegetables, the alleged misdescription 
 could not have misled him, for the house is not described as situated in 
 the market, but in the piazza ; and the rule, caveat emptor, applies. The 
 lease was read by the auctioneer, and the plaintiff might have required 
 to inspect it. Even where property is held under a lease containing 
 covenants contrary to custom, a purchaser is not entitled to compensation 
 if he knew of the existence of the lease; Hall v. Smith', Walter v. Maude'. 
 The arbitrator having found that there was no fraud, the plaintiff could 
 not rescind the contract ; Oldfield v. Round^, Scott v. Hanson*. If there 
 be any misdescription, the conditions of sale expressly entitle him to 
 compensation, and Drewe v. Hanson'' shews the principle on which it may 
 be estimated. 
 
 Cur. adv. vult. 
 
 TiNDAL, C. J. The question in this case arises upon the special facts 
 found by the arbitrator on his award : and it is this, whether the plaintiff 
 was at liberty under the circumstances stated in the award to consider the 
 contract of sale to be rescinded. For if rescinded, the plaintiff is entitled 
 to recover the deposit as money had and received to his use ; but if the 
 contract is still unrescinded and open, the present action is not maintain- 
 able, but whatever injury the plaintiff has sustained by the misdescription 
 must form the subject of a special action on the contract of sale. 
 
 Now the arbitrator having expressly found that no wilful conceal- 
 ment or misrepresentation was proved against the defendant, we must 
 consider the case as standing clear from any fraud, and take the mis- 
 description of the premises to have originated either from ignorance, 
 inadvertence, or accident. 
 
 The question, therefore, is narrowed to the single point, whether the 
 misdescription in the printed particulars of sale of the premises to be sold 
 was such as to entitle the purchaser to rescind the contract altogether ; or 
 whether it was such as was contemplated by the sixth condition of the 
 printed particulars of sale, by which it was provided, that "if through any 
 mistake the estate should be improperly described, or any error or 
 misstatement be inserted in that particular, such error on misstatement 
 should not vitiate the sale thereof ; but the vendor or purchaser, as the 
 case might happen, should pay or allow a proportionate value according to 
 the average of the whole purchase-money as a compensation, either way." 
 
 It is extremely difficult to lay down, from the decided cases, any 
 
 ' 14 Ves. 426. - 1 .Jac. & Walk. 181. ' 5 VeB. 508. 
 
 * 1 Sim. 13. 5 (, Ves, 575,
 
 SECT. Il] FLIGHT V. BOOTH. 585 
 
 certain definite rule wliich shall determine wliat misstatement or misdescrip- 
 tion in tlie particulars shall justify a rescinding of the contract, and what 
 shall be the ground of compensation only. All the cases concur in this, 
 that where the misstatement is wilful or designed, it amounts to fraud ; 
 and such fraud, upon general principles of law, avoids the contract 
 altogether. But with respect to misstatements whicli stand clear of fraud, 
 it is impossible to reconcile all the cases ; some of them laying it down 
 that no misstatements wliich originate in carelessness, however gross, sliall 
 avoid the contract, but shall form the subject of compensation only; Duke 
 of Norfolk V. Worthy'', Wright v. Wilson"; whilst other cases lay down the 
 rule, that a misdescription in a material point, although occasioned by 
 negligence only, not by fraud, will vitiate the contract of sale ; Jones v. 
 Edneif, Waring v, Uoggart*, and Stewart v. AlUston^. In this state of 
 discrepancy between the decided cases, we think it is, at all events, a safe 
 rule to adopt, that where the misdescription, although not proceeding from 
 fraud, is in a material and substantial point, so far affecting the subject- 
 matter of the contract that it may reasonably be supposed, that, but for 
 such misdescription, the purchaser might never have entered into the con- 
 tract at all, in such case the contract is avoided altogether, and the 
 purchaser is not bound to resort to the clause of compensation. Under 
 such a state of facts, the purchaser may be considered as not having 
 purchased the thing which was really the subject of the sale; as in Jones 
 v. Edney, where the subject-matter of the sale was described to be " a free 
 public "house," while the lease contained a proviso, that the lessee and his 
 assigns should take all their beer from a particular brewery ; in which case 
 the misdescription was held to lie fatal. 
 
 In the case under discussion the particulars represent the house as 
 calculated for an extensive business in various trades therein enumerated; 
 to which it was added, " that no offensive trades are to be carried on : the 
 premises cannot be let to a coffee-house keeper or working liatter." Any 
 person reading this particular, and having no information but what he 
 derives from it, that is, perhaps, every person attending the sale, would 
 conclude, that he was not prevented by the terms of the lease from carry- 
 ing on any trade in it, except those which were of a class generally 
 acknowledged to be offensive, and the two enumerated trades of coffee- 
 house keeper and working hatter. He would never suppose, nor have any 
 reason to suppose, that he was prevented from carrying on the trade of a 
 baker, a fruiterer, or a herb-seller, in a house situated in the piazza of 
 Covent Garden market, much less that the lease was to become void, if tiie 
 house, so situated, was used as a place for the sale of any provisions what- 
 ever. The latter restriction would extend to prevent trades of the most 
 innocent and inoffensive kinds from being exercised on the premises ; such 
 as a flour factor, a biscuit seller, or the like ; yet such are the restrictions 
 
 1 1 Campb. 340. > 1 Mood. & Kob. 207. ' 3 Campb. 284. 
 
 * 1 Ey. & Mood. 3<l. » 1 Mer. 26.
 
 586 FLIGHT ('. BOOTH. [cHAP. V 
 
 found to exist in the lease when it is first submitted to tlie inspection of 
 the purchaser. Under these circumstances, it appears to us, that a lease 
 which is described as containing a restriction against offensive trades, and 
 a lease containing restrictions not only against offensive trades but also 
 against some trades that are inoffensive, are not one and the same thing, 
 but a different subject-matter of contract ; and that where a man pur- 
 chases by the former description, it may very well be supposed that he 
 would not have become the purchaser, whether he bought for the purpose 
 of carrying on trade upon the premises himself, or for a money investment, 
 if he had known the lease had contained tlie larger and more extensive 
 restrictions ; and, indeed, the \evj terms of the sixth condition of sale 
 scarcely apply to a case where the difference of value is so uncertain and 
 arbitrary as in the present case. The condition, tliat the parties are to 
 pay or allow a proportionate value according to the average, will compre- 
 hend a case where there is half an acre more or less than is described, or 
 cases which resolve themselves into simple calculations of that nature; but 
 how will it govern such a misstatement as the present '? Wliat action at 
 law can be framed upon iti It would at least involve the purchasers in 
 great difficulties. The lease being in the hands of the vendor, he had 
 peculiarly, and indeed exclusively, the means of knowledge of the exact 
 restrictions contained in it ; the purchaser at the auction had none. For 
 the reading the lease at the auction by the auctioneer has been decided to 
 be no excuse for a misdescription of tlie terms of the lease in the particulars 
 of sale'. And as to any laches on the part of the purchaser in not sooner 
 demanding an inspection of the lease, which was urged as an argument on 
 the part of the defendant, he had not the most distant reason to suspect 
 any misdescription, until the abstract was delivered, and then the suspicion 
 would come too late; for the question is, wliether he was bound or not at 
 the time the contract was made. If, indeed, there had been any waiver of 
 the objection in this case, our decision would have been different ; but a 
 waiver should have been found by the arbitrator : and so far as can be 
 inferred from the facts found upon the award, the lease was never seen by 
 the purchaser, nor the objection ever taken, until the trial of the cause. 
 He stood then, as he might do, upon his legal right to recover the dejjosit. 
 Upon the whole, we see no reason to be dissatisfied with the arbitrator's 
 award, and therefore the rule for entering the verdict for the defendant 
 must be discharged. 
 
 liule duc/iaiyed '. 
 
 1 Jones V. Edneij, 3 Campb. 285. 
 
 - "There is no doubt what the principle is as to questions of this kind; it is the 
 obvious duty of a vendor to make himself fully acquainted with all the peculiarities and 
 incidents of the property which he is going to sell ; and when he describes the property 
 for the information of the purchaser, it is his duty to describe everything which it is 
 material to know, in order to judge of the nature and value of the property. It is not 
 for him just to tell what is not actually untrue, leaving out a great deal tliat is true ; 
 and leaving it to the purchaser to imiuire whether there is any error or omission in the 
 description or not." — Per Kindcreley, V.-C, in Brandling v. Blummcr, 2 Drewry, 427, 
 ■129. Kn.
 
 SECT. Il] EDWARDS V. WICKWAU. 587 
 
 EDWARDS V. WICKWAR. 
 
 In Chancery, November 16, 1865. 
 [Rvjiorted in Law Ili'port^-, 1 F.ijuili/ Ciixes, G8.] 
 
 Tins case came on upon summons adjourned from Chambers. A decree 
 had been made for the sale of leasehold estate, and the property had 
 been put up for sale under conditions, one of which was as follows : — 
 
 11th Condition. — "It will appear from the abstract that an under- 
 lease of tlie property was, in 185"2, granted to John Stone for twenty-one 
 years from the 25th of December then last. The said Jolin Stone is 
 believed to liave absconded, and not to have paid any rent for several 
 years past, and inasmucli as a fresli underlease was on the 1st of October, 
 1864, purported to be granted by tlie trustees of the will of the testator 
 in the present cause to the present tenant who is in possession under it, 
 no objection or requisition shall be made in respect of the underlease of 
 1852, or of any derivative interest created tliereout, or of any underlease 
 or tenancy prior to the said underlease of 1864." 
 
 Another underlease had, within the knowledge of tlie vendors, been 
 made prior to 1864, to a gentleman of the name of Palmer. 
 
 At the sale one Mr. Brayne was declared purchaser, and an abstract 
 was duly delivered to him. Notice of Palmer's underlease, and of the 
 vendors' knowledge of it, appearing on the chief clerk's certificate in tlie 
 cause, the purchaser returned the abstract with a requisition, among 
 others, requiring an abstract to be furnished of Palmer's underlease, and 
 that the underlease itself should be produced, and a surrender of it ob- 
 tained at the vendor's expense. 
 
 The vendors declined to comply with this requisition, contending that 
 it was covered by the general words in the condition that no requisition 
 should be made respecting "any other underlease prior to 1864." 
 
 The purchaser being unwilling to proceed with the sale until the 
 requisition was complied witli, the vendors summoned liim to shew 
 cause why lie should not proceed, and the summons was adjourned into 
 Court. 
 
 Mr. Glffard, Q.C., and Sir. W. Forstcr, for the vendors, contended that 
 the objection taken. by the purchaser was one which by the condition he 
 was precluded from raising ; that the words excluding requisitions in 
 respect of " any other underlease " were inserted for the purpose of meet- 
 ing this very case, and that the purchaser would have been in no respect 
 better off had the underlease to Palmer been mentioned in express words 
 in the condition than he was under the general words contained in it, and 
 could not have been induced to bid by the suppression of express mention 
 of that underlease. 
 
 Mr. .C. Brown, for the purchaser, was not called f)u.
 
 588 LEE V. JONES. [chap. V 
 
 Sir W. Page Wood, V. C. :— 
 
 I liave no doubt on this case. It was tlie clear duty of the vendor to 
 give the fullest information which he himself possessed as to the title. 
 The object of special conditions of sale is to protect the vendor from 
 inquiries which lie himself may be unable to satisfy, and against objections 
 which he cannot explain away. There may, indeed, be cases like Freme v. 
 Wriyht', where assignees of a bankrupt have stipulated that such title 
 only as the bankrupt had should be required by the purchaser, but even in 
 that case it has been thought a stretch of the jurisdiction of the Court to 
 force the title on a purchaser. Tliere is in this case nothing analogous to 
 such a state of things as occurred there. I do not wish to lay down 
 any different rule regarding sales under tiie direction of this Court from 
 that which prevails generally, but certainly the principles on which such 
 sales are conducted ought not to be more lax as to the complete bona 
 fides required tlian tliose wliich are held to govern in other cases. Here 
 it was plainly the duty of the parties to disclose the underlease, and 
 it would be most mischievous to allow a vendor to suppress facts known to 
 him affecting the title, and yet compel a purchaser to accept it. 
 
 LEE AND ANOTHER v. JONES. 
 In the Exchequer Chamber, November 30, 1864. 
 
 [Reported in 3-1 Law Journal Reports, N. S. Common Pleas, 131-.] 
 
 This was an appeal, by the plaintiffs, against the decision of the Court 
 of Common Pleas, discliarging a rule to set aside the verdict for the 
 defendant, and to enter a verdict for the plaintiffs for lOOl. 
 
 The action was to recover 100^. Tlie declaration was framed upon an 
 agreement between Charles Jones, the defendant, and four other persons of 
 the one part, and the plaintiffs, Lee and Jerdein, coal-merchants, of the 
 other. 
 
 The agreement, dated October, 1801, commenced in the following terms: 
 " Whereas James Packer has for some time past been a salesman of coals 
 upon commission for the said Lee & Jerdein, he the said James Packer 
 giving bills of exchange to the said Lee & J erdein for all such coals as may 
 he delivered to his order, such bills being floating bills, to be settled for 
 and paid up at the expiration of the current months during which such 
 bills are respectively running ; and whereas the said Lee & Jerdein requir- 
 ing security from the said James Packer, they stipulated (amongst other 
 
 1 i Madd. 364. 
 ' Keported also in 14 C. B. (s. s.) 386, and 17 C. B. (n. s.) 482. Ee.
 
 SECT. II] LEE V. JONES. 589 
 
 things) that the said Charles Jones" [and the four other persons naming 
 them] "should give them a floating and continuing guarantie for the term 
 of three years from the date hereof on behalf of the said James Packer, to 
 secure to them, the said Lee & Jerdein, the amount of any balance which 
 might at any time or times be due to them, the said Lee & Jerdein, from 
 the said James Packer upon any such coal account on bills, to the amount 
 of 300^., in the proportions following : the said Charles Jones in the sum 
 of 100/." [it then stated the proportions of the other four sureties], 
 " making together the said sum of 300/. ; and in order to induce the said 
 Lee ife Jerdein to continue the said arrangement with the said James 
 Packer, the said Charles Jones" [and the other four sureties] "agreed to 
 enter into this agreement for guarantie in manner hereinafter appearing : 
 Now this agreement witnesses, that in consideration of the said Lee 
 & Jerdein agreeing to allow the said James Packer a certain commission 
 upon coals, under an agreement between them, and bearing date the 1st of 
 November, 18-56, they the said Charles Jones" [and the other four sureties] 
 " do hereby severally and respectively guarantee, promise and agree to and 
 ■with the said Lee & Jerdein, that they the said Charles Jones" [and the 
 other four sureties] " shall and will pay and make good in the respective 
 proportions hereinbefore mentioned, to the said Lee ife Jerdein, or their 
 executors, administrators or assigns, all such sum and sums of money as 
 may be due and owing to them at any time or times during the said term 
 of three years from the said James Packer, in relation to the said agree- 
 ment or bills of excliange, not exceeding in the whole the said sum of 300/., 
 such guarantie to be a continuing guarantie, and to be made good at any 
 time by the said Charles Jones" [and the other four sureties] "for any 
 balance or amount due to the said Lee <fe Jerdein in respect of the said 
 agreement between the said James Packer and the said Lee &, Jerdein 
 during the said term of three years." 
 
 The agreement then further stated, that giving time to James Packer 
 should not invalidate the agreement, and continued : " That this agree- 
 ment is to be taken as supplemental and in addition to an agreement bear- 
 ing date the 1st of November, 1856, made between Sarah Tinson of the one 
 part, and the said Lee &, Jerdein of the other." 
 
 The original agreement between Lee & Jerdein and Packer, made the 
 1st of November, 1856, stated that it was agreed tliat Packer should 
 continue as agent for the sale of coals on the terms that Packer should 
 obtain customers for Lee & Jerdein, and have coals delivered to his order, 
 for which Packer was to receive a specified commission ; and in considera- 
 tion thereof that Packer should give bills of exchange to Lee & Jerdein, as 
 security for the amount in value of the coals so to be delivered, the inten- 
 tion being that Packer should make himself personally responsible for the 
 payment of such amounts to Lee it Jerdein ; that the customers so intro- 
 duced should be deemed customers of Lee & Jerdein, and all bills and 
 accounts sent in to them as such. And it went on : " that all monies
 
 590 I-EK >: JOXES. [fHAlV V 
 
 received by the said James Packer from any of sucli customers shall bo so 
 received Viy him as agent for the said Lee ifc Jerdeiii, and paid over and 
 accounted for by him within six days after the receipt thereof by him ; 
 tliat such amounts so accounted for shall from time to time be taken ofi' or 
 credited upon the said floating bills so to be given from time to time by the 
 said James Packer as aforesaid." Tlie agreement furtlier proceeded to 
 witness that, in consideration of the commission, James Packer promised 
 and agreed to perform and keep all the foregoing agreements and stipula- 
 tions. 
 
 The agreement of tiie same date, the 1st of ISTovember, 18.56, between 
 Sarah Tinson and Lee & Jerdein, recited that Packer was her son, that he 
 was a salesman on commission for Lee & Jerdein, " he, the said James 
 Packer, giving bills of exchange to the said Lee & Jerdein for all such 
 coals as may be delivered to his order, such bills being floating bills, to be 
 settled for and paid up at the expiration of the current months during 
 wliicli such bills were respectively running." It then provided that Sarah 
 Tinson guaranteed that she would pay and make good to Lee <fe Jerdein 
 " all such sum and sums as may be due and owing to them at any time or 
 times from the said James Packer in relation to the said agreement or bills 
 of exchange, not exceeding in the whole 300/. ; such guarantie to be a con- 
 tinuing guarantie," ic. 
 
 The defendant pleaded that the supposed agreement and promises were 
 obtained from him by the plaintiffs, by the fraud of the plaintiffs, and by 
 their fraudulent and undue concealment of material facts within their 
 knowledge, material to be made known to the defendant before he entered 
 into the said agreement. 
 
 From November, 1856 Packer had acted as agent for the plaintiff's, 
 selling coals on the terms of the original agreement of that date ; but he 
 did not, for a long time previous to October, 1861, pay the plaiBtifTs for 
 the coals delivered to his order pursuant to the agreement, and in October, 
 1861 was in debt to the plaintifls, in respect of the coal account, 1,332/. 
 The plaintiffs, on this, required from him further security, and he obtained 
 the consent of the defendant and of the other persons mentioned as sureties 
 in the agreement declared on to become sureties. On this, the plaintiffs 
 caused tlie agreement declared on to be prepared, and sent it to the defend- 
 ant by their collector, who had no authority to answer any statements 
 respecting it. The defendant made no inquiry of tlie plaintiffs respecting 
 the state of Packer's account, nor did the j)laintifls give the defendant any 
 information respecting it. Nothing was stated in the agreement of 
 guarantie executed by the defendant respecting the debt due from Packer 
 to the plaintiff's, or respecting the state of the accounts or the course of 
 business between them, except as is above set out. The case found that 
 there was no evidence to shew that the plaintifls were aware that Packer 
 had actually received from the customers for the coals the monies making 
 up the 1,332/. ; and it did not otherwise than infprentially from the aho\ e
 
 SECT. Il] T.EE V. JONES. 591 
 
 statement aver tliat Packer himself had received the money. The defend- 
 ant, wlien lie executed the agreement, was not aware of the debt due from 
 Packer to the plaintifls. 
 
 On the trial a verdict was found for the defendant, Erie, C. J., before 
 whom the case was tried, holding that tiiere was evidence of fraud for the 
 jury. Leave was reserved to the plaintiffs to move to set aside that 
 verdict, and enter a verdict for 100/. 
 
 The plaintiffs having moved accordingly, the Court of Common Pleas 
 supported the ruling of the Chief Justice. 
 
 The case was argued, in the Exchequer Chamber (June 18, 1S64), by 
 
 Collier (Solicitor-General) {Pre7itice with him), for the plaintiffs, the 
 appellants. There was no evidence of any fraud on the part of the 
 plaintiffs. There was no moral or legal duty obliging the plaintifls to tell 
 the defendant that Packer had not paid his bills monthly, and that they 
 had not enforced their sti-ict rights, according to the agreement between 
 them. If the defendant wished for information from the plaintifls respect- 
 ing the state of Packer's account with the plaintiffs, he ought to have 
 asked the plaintiffs. If he chose to trust to Packer's statement alone, or 
 to make no inquiry at all, the plaintiffs ought not to suffer from his indis- 
 cretion. The plaintiffs ought not to be in a worse position because the 
 defendant acted without due caution. Packer was not a defaulter in the 
 sense of having received money and having not paid it over. He was a 
 del credere agent. The plaintiffs did not think Packer a defaulter. It may 
 be that there was no actual default. It is not found that the parties for 
 whom Packer was responsible had paid him. Tliey may have all been 
 solvent. The very fact of the plaintiffs asking for further security was 
 enough to put the defendant upon making due inquiry. There was no 
 misrepresentation on the plaintiffs' part. Every statement in the docu- 
 ment submitted to the defendant is true and fair. The principle which 
 governs in marine and life insurances, that the party insuring is bound to 
 disclose every circumstance material to the subject of the contract, is 
 peculiar to such insurance contracts only, and does not extend to guaranties 
 — HamUton v. Watson^, North British Insurance Compani/ v. Lloyd'. 
 There must be actual fraud to vitiate any other contract. To avoid this 
 contract there must have been a plain misrepresentation. It cannot 
 reasonably be argued that the omitting to recite in the agreement that 
 Packer was in debt to the plaintiffs amounts to a representation that lie 
 had duly paid his bills. Kailton v. Mathews^ is very distinguishable. 
 The marginal note there is incorrect. The only decision there was that 
 the ruling of a Scotch Judge was incorrect. It turned on the law of 
 Scotland, which is different, it seems, from the English law ; and, further, 
 the principal there was known to be a defaulter. 
 
 Honyman, for the defendant, the respondent. There was evidence of 
 
 1 12 CI. & F. 100. -' 10 Exch. Eep. 523 ; s.c. 21 Law .T. Eep. (x.s.) Excli. 11. 
 ■' 10 CI. ct F. 031.
 
 592 I'EE V. JONES. [chap. V 
 
 fraud. Tlie defendant liad a right to have communicated to him by the 
 plaintiSs the state of the accounts between them and Packer, who was in 
 arrear to a very large amount, 1,332^. — Pidcock v. BishopK The mode 
 of the recital of the prior agreement in the agreement which the defendant 
 was induced to sign lea,ds naturally to the inference that the plaintiffs 
 mean to represent that that prior agreement had been substantially carried 
 out, and that the further security was required respecting future debts. 
 The recitals in the agreement amount in substance to evidence of actual 
 intentional misrepresentation, which misled the defendant to his hurt. 
 
 Cur adv. full. 
 
 The learned Judges, differing in opinion, delivered their judgments 
 seriatim, on the 30th of November, 1864. 
 
 Shee, J. The question for our decision is, whether on the facts before 
 us as stated in the case, and in the agreements which are to be taken as 
 parts of it, there was any evidence for the jury, in support of the defend- 
 ant's plea, that the supposed agreement and promises were obtained from 
 him by the fraud of the plaintiffs, and by their fraudulent and undue 
 concealment of material facts within their knowledge respecting the said 
 James Packer, material to be made known to the defendant before he 
 entered into the agreement. The facts were as follows : Under an agree- 
 ment of the 1st of November, 1856, James Packer had been for five years a 
 commission agent of the plaintiffs for the sale of coals, to be delivered by 
 them to his order, on the terms that he should from time to time give to 
 the plaintiffs his bills for the amount of the coals so delivered, and pay to 
 them within six days of its receipt all money received by him from 
 customers for such coals, to be taken off and credited upon the bills so to 
 be given by him. And by an agreement of the same date, between the 
 plaintiffs and Sarah Tinson, the mother of Packer, she had become surety 
 to the plaintiffs to the extent of 300^. for the due performance by Packer 
 of his agreement. Packer not having for a very considerable time " carried 
 out his agreement by settling for and paying up his bills at the expiration 
 of the months during which they were current," had become debtor to the 
 plaintiffs in the sum of 1,332/., and Sarah Tinson, on her guarantie for 
 him, had become their debtor to the extent of 300/., when the plaintiffs 
 informed Packer that they wanted further security, and could not without 
 it continue him in their employment, and stipulated with him that the 
 defendant and the other parties, sureties with him in the agreement sued 
 upon, should, by their several and continuing guaranties, give tlie plaintiffs 
 further security to the extent of 300/. against the said James Packer. In 
 pursuance of this stipulation the plaintiffs caused the agreement sued upon 
 to be prepared. Although in legal construction it extends to defaults 
 already made as well as to defaults which might be in the future made, it 
 gives no intimation in any part of it of an intention that it should operate 
 
 1 3 B. & C. 605.
 
 SECT. Il] LEE i: JONES. 593 
 
 retroactively, or of any ascertained default on which it could so opei-ate. 
 It is silent on the fact of the breach by Packer of his agreement, that he 
 would for the coals delivered to his order give from time to time his 
 acceptances, and take them up at the expiration of the months during 
 which they were current ; on the fact that by not having done so he had 
 incurred a debt to the plaintiffs of 1,332^., and involved Sarah Tinson in a 
 liability for 300^. ; on the fact that the plaintiffs had informed liim that 
 he must give them further security or relinquish their employment; on the 
 fact that the defendant, on his signature of the agreement, would, not 
 contingently only on future defaults, but at once, become liable for 100^.: 
 and none of these facts, of which the defendant was entirely ignorant, were 
 communicated to him by the plaintifls, nor was any opportunity for inquiry 
 of them, or of those who represented them, afforded to the defendant. The 
 plaintiffs personally had no communication with him, and never saw him ; 
 it was left to Packer, whose employment and livelihood, as well as the 
 liability of Saraii Tinson, were at stake, to obtain the consent of the 
 defendant and of the other sureties in the best way he could, and as he 
 thought proper ; and the collector of the plaintiffs, who was sent round 
 with the agreement to procure the signatures of the defendant and of the 
 other sureties, had no authority to answer questions. It is clear from the 
 case of The North British Itisurance Company v. Lloyd^, correcting the 
 dictum of Lord Truro in Oicen v. Honian', that the rule which prevails in 
 assurances upon marine and life risks, that all material circumstances 
 known to the assured must be disclosed by him, and that the non-disclosure 
 of them, though innocent and not fraudulent, vitiates the contract, does 
 not apply to contracts of guarantie. But upon a discussion in which the 
 question is, whether there was any evidence to be left to the jury to 
 support a plea, not of non-disclosure merely, but of fraud and fraudulent 
 concealment of facts material to be made known to the defendant, this 
 singularity of insurance law is surely little better than an intruder. What 
 place can it have in the argument, unless they who put it forward are at 
 liberty to assume the negative of the plea'? Whether there was any 
 evidence of fraud and fraudulent concealment is the subject of inquiry, and 
 there is no definition of guilty, as distinguished from innocent silence, or of 
 bad faith and fraud in contracts whicli the facts in this case do not exactly 
 tit. Aliud simulntum aliud actum", the making one state of things appear 
 to those with whom you deal to be the true state of things, while you are 
 acting on the knowledge of a different state of things— among the oldest 
 definitions of fraud in contracts — is here exemplified ; for the agreement 
 was prepared by the plaintiffs as a security to them against a defaulter, 
 with whom, on account of his default, except on further security, they had 
 declined to continue their arrangement ; and the defaulter is held out by 
 
 1 10 Exch. Rep. 523; s.c. 24 Law J. Kep. (n.s.) Exch. 14. 
 = 3 Mac. & G. 378; s.c. 20 Law J. Eep. (s.s.) Chaac. 314. 
 ' Cicero de Offioiis, b. 3, c. 14. 
 F. 38
 
 594 i-EE V. JONES. [chap. V 
 
 them as tlieir commission agent, with a five years' character in their 
 service, who had been guaranteeing by his own bills during that time the 
 customers introduced by him, under the protection of a pre-arranged system 
 of short reckonings, settlements and payments from all temptation to dis- 
 honesty, irregularity or rash dealing. Sarah Tinson, whom presumably he 
 would be reluctant to imperil, is held out as a person who was willing after 
 five years' experience of the working of her son's commission agency, to 
 contiiiue liable to the same extent in amount and time with the defendant 
 and tlie other proposed sureties ; whereas lier guarantie, to which theirs is 
 described as " supplemental and additional," was exhausted, the first and 
 immediate ofiice of their guarantie being to make hers good should she fail 
 in doing so ; they, should she discharge it, continuing liable to the extent 
 of 300?. for the balance, and any future addition to it remaining due by 
 Packer to the plaintifts. The only hint in the agreement sued upon of the 
 real state of things between the plaintifis and Packer is to be found in the 
 recital that, " in order to induce the said Lee & Jerdein to continue the 
 said arrangement with the said James Packer, the said sureties had agreed," 
 (fee, the eflect of which recital was for the jury, and which, when read with 
 the context was more likely to lead the proposed sureties to the inference 
 that the existing security had, by reason of the increase of Packer's trans- 
 actions on account of Lee &■ Jerdein, become inadequate than that it 
 was already forfeited. " The guilt of fraud," says the Digest, " is not in 
 liim only who, for the purpose of deceiving, uses obscure language, but in 
 him who insidiously and without appearing to do so dissembles what he 
 thinks "^Digest, 1. 43, s. 2, de dolo Malo. " Dolus malus non tantum in 
 eo est qui fallendi causa obscure loquitur, sed etiam qui insidiose vel 
 obscure dissimulat." It is diflicult to conceive language more obscure and 
 better calculated to mislead, or dissimulation more insidious than in this 
 agreement. Who would imagine that a recital " tliat James Packer lias 
 for some time past been a salesman of coals on commission for the said 
 Lee & Jerdein, he the said James Packer giving bills of exchange to them 
 for all such coals as may be delivered to his order, such bills being floating 
 bills, to be settled for and paid up at the expiration of the current months 
 during which such bills are respectively running," was, if true in any 
 sense, true only in the loose sense that he had contracted five years before 
 to give bills from time to time for such coals as might be delivered to his 
 order, without any stipulation as to their being settled for and paid up at 
 the expiration of the current months during which they were running, 
 and that the course of dealing thus described, if it ever existed, had not, as 
 the case expressly states, been observed by Packer for a very considerable 
 time'! What plain man, bargaining with one whom he thought honest and 
 did not care to insult, could reasonably be expected to inquire whether the 
 words, " should give to Lee & Jerdein a floating and continuing guarantie 
 for the term of three years," might not mean, or be intended to mean, that 
 he was to be liable before his signature to the agreement was dry, abso-
 
 SECT. Il] I.EE V. JONES. 595 
 
 lutely and inevitably to the extent of 100/., or whetlier the words in the 
 operative part of tlie agreement, " do hereljy guarantee, promise and agree 
 that they shall and will pay and make good all such sum and sums of 
 money as may be due to Lee & Jerdein at any time during the said terra 
 of three years," might not be intended to mean — do heieby guarantee, 
 promise and agree that they shall and will pay and make good to the 
 extent of 300/. a debt of four times that amount now due, and all furtiicr 
 debts which may become due during the term of three years ? " To be 
 silent is one thing, concealment i.s another. You may be silent respecting 
 facts within your knowledge witliout being guilty of concealment. You 
 are guilty of it, when the motive of your silence is a \vish that others for 
 your advantage should be ignorant of facts which you know, and which it 
 is for their interest tiiat they should know." Sucli is the description or 
 definition of undue concealment in the Treatise de Ofticiis : " Aliud est 
 celare, aliud tacere'. Keque enim id est celare quidquid reticeas ; sed 
 cum quod tu scias id ignorare emolumenti tui causa, veils eos, quorum 
 intersit id scire. Hoc autem celandi genus quale sit et cujus liominis quis 
 non videt? Certe non aperti, non siniplici.s, non ingenui, non justi, non 
 viri boni ; versuti potius, obscuri, astuti, fallacis, malitiosi, callidi vetera- 
 toris, vafri, hsec tot et alia plura nonne inutile est subire nomina' 1 These 
 definitions and maxims, though cited in all the books on the contract of 
 insurance, are of much older date than any certain ti-ace of that contract, 
 and not more applicable to it than to the contract of guarantie. Is there 
 not in this agreement a studied effort to conceal the truth from those who 
 were interested in knowing it, and whom the plaintiffs and Packer wanted 
 not to know it? Under this impression I should on the argument of tliis 
 case, had it not been for the dissent of my Lord Chief Baron and some of 
 my learned Brothers, have arrived at a confident opinion, that there was 
 not only some evidence, but cogent evidence of such a suppres.sion of 
 the truth, by a partial, inaccurate and subdolous setting forth by the 
 plaintiffs in the agreement of facts witliin their knowledge material for the 
 proposed sureties to be informed of, as along with the non-communication 
 of other facts material for them to know, amounted to a misrepresentixtion 
 to the proposed sureties, that they were asked to come under none but the 
 more ordinary liabilities of sureties — a contingent liability ; and that 
 Packer during his five years' agency had proved himself to be a man worthy 
 of trust and confidence — a satisfactory guarantor of others and himself 
 the safe subject of a guarantie. 
 
 But it was urged, on the part of the plaintiffs, and with the apparent 
 assent of some of my Brothers, that we are concluded on this point by 
 authority, and that if the cases which had been cited to us had been more 
 maturely considered in the Court below, its judgment would have been 
 different. I do not think so. The two cases in the House of Lords, and 
 the case in the Court of Exchequer, appear to me to have been rightly 
 
 • Cicero de Officiis, book 3, c. 12. - Ibid. c. 13, see note ante p. 567. 
 
 38—2
 
 596 i-EE V. JONES. [chap. V 
 
 understood by the Cliief Justice at Nisi Prius, and by tlie Court of 
 Common Pleas, and to be in favour of the defendant. There is not a 
 word in tliera tending to weaken the principle that an undue and fraudu- 
 lent concealment of matters material to be known by tiie guarantor vitiates 
 the contract which is tainted by it. The case of RaiUon v. Matheivs^ 
 decided, that on an issue " whether the pursuer was induced to subscribe 
 the bond by undue concealment or deception on the part of the defenders," 
 — as explained by the summons of reduction of suretyship, to mean 
 " whether when the defenders accepted and took possession of the said 
 bond they fraudulently suppressed and concealed the said wliole facts and 
 circumstances regarding the conduct and irregularities of the debtor," it 
 was a misdirection to tell the jury that " such concealment, to vitiate the 
 bond, must be wilful and intentional on the part of the person obtaining it, 
 and with a view to an advantage to himself." Undue concealment, 
 though not wilful and intentional and with a view to the advantage of the 
 person taking a guarantie, being thus held sufficient to vitiate it, the case 
 is strongly in favour of the defendant, for there was in this case, as it 
 seems to me, e\'idence that the non-communication to him by the plaintiffs 
 was not merely undue, but wilful and intentional ; and it was for their 
 immediate advantage, and, as they knew, and knew that the defendant did 
 not know, for his immediate disadvantage, if an underhand dealing of 
 guarantie by tlie party taking it can ever be so. But Railton v. Matliews^ 
 is said to have been qualified by the later case — Hamilton v. Watson'. 
 Quite otherwise, as it appears to me. In Hamilton v. Watson' (the true 
 grounds of the decision of which are to be found in the judgment of Lord 
 Cottenham, and in what fell from him in tlie course of the argument rather 
 than in the judgment of Lord Campbell), a cash credit on the guarantie of 
 sureties had been granted to a man already in debt to the bankers who 
 granted it, and the debt which had not been mentioned to the sureties was 
 discharged by a cheque which, but for the new cash credit, the debtor 
 would not have been in a position to draw. There was no allegation, as 
 was -observed by Lord Cottenham, of fraud or misrepresentation, or of any 
 secret agreement as to the way in which tlie cash credit should be 
 applied. 
 
 But it was pressed upon the House at the bar, that it was the duty of 
 bankers taking a guarantie for a cash credit to inform the party giving the 
 guarantie of every circumstance in the previous dealings of the party 
 guaranteed, which might influence the consideration whether the guarantie 
 should be given or refused. Lord Cottenham and Lord Campbell combat 
 this contention in their judgment. The latter suggests as a criterion of 
 innocent silence on the part of a creditor taking a suretyship bond, 
 whether the fact not disclosed be one the existence of which misht natu- 
 rally be expected by the surety, as the indebtedness to his bankers of a 
 person asking fi-iends to be sureties for him to those bankers in a new 
 1 10 CI. & F. 934. 2 12 CI. & F. 109.
 
 SECT, ll] LEE V. JONES. 597 
 
 casli credit would he. Their decision is, that where there is no fraudulent 
 coucealnient it is not necessary to the validity of a cash credit surety bond, 
 that all the circumstances of the dealings between the debtor and tiie 
 creditor taking it should be voluntarily disclosed by him to the party giving 
 it. There is a wide difl'erence, as respects what might naturally be 
 expected to be the actual state of the account of one man with another, 
 between the case of a suretysiiip for a man requiring and applying for a 
 cash credit to bankers with whom he had had previous dealings, and whose 
 business it is to lend capital to penniless persons on the security of sureties, 
 and the case of a suretyship for a surety of others — a surety between whom 
 as such and his employers, short reckonings as the defendant was led to 
 suppose, had for five years been observed as a rule. But it is unnecessary 
 to dwell upon the distinction, for in Hamilton v. Watson^ neither fraud nor 
 fraudulent concealment was charged ; whereas here they are charged, and 
 the only question is, whether there was any evidence to be left to the jury 
 of them. 
 
 The case of The North British Insurance Company v. Lloyd' would not 
 probably have been cited had it not been for the distinction re-established 
 in it by my Lord Chief Baron, between the contracts of insurance and of 
 guarantie. The fact not disclosed in that case was considered by the jury 
 not to have been one material for the surety to have been informed of, and 
 the Court concurred in their decision upon tiiat point. It is stated in the 
 case that there was "no evidence to shew that the plaintiffs were aware at 
 the time when the agreement of the 3rd of October, 1861, was entered 
 into, that Packer had actually received payment from the customers for 
 the coals delivered to his order." This seems to imply that Packer had 
 received such payment, and though we are not at liberty to infer the plain- 
 tiffs' knowledge of it, we are at liberty to infer that, while contemplating 
 the obtaining of the suretyship of tiie defendant and of the other sureties, 
 the plaintitis were deliberately and grossly negligent of a duty which, for 
 the sake of the proposed sureties, it was incumbent upon them to discharge 
 ■ — the duty of ascertaining the cause of Packer's default ; whether he had 
 received payment for the coals delivered to his order, and if so whether the 
 money which he ought to have paid over to the plaintitis within six days 
 of its receipt had been applied by him to other uses — Dissoluta negligentia 
 prope dolum est ; Digest b. 1. 1, s. 29. If Packer, with the plaintiffs' 
 authority, had actually received payment for the coals delivered to his 
 order, the observation of one of my learned Brothers in the course of the 
 argument, that the customers, notwithstanding Packer's intervention, were, 
 as well as he, and they primarily, responsible to the plaintiffs, would have 
 less weight than it might otherwise be entitled to. This double liability of 
 Packer and of the customers to the plaintifls could in no case, as it appears 
 to me, countervail the inherent ugliness of the transaction. Upon the 
 
 ' 12 CI. A F. lO'J. - 10 Exch. Kep. 5-2:5; s.ci. 21 Law .1. liip. (s.s.) Exch. U.
 
 598 LEE V. JONES. [chap. V 
 
 wliolp, I am of opinion tliat the judgment of tlie Court of Common Pleas 
 should be affirmed. 
 
 Blackburn, J. I am of opinion that in this case the decision of the 
 Court below should be affirmed. The question is, whether, under the 
 circumstances stated in the case there was evidence to go to the jury in 
 support of the averment of fraud ; for I think that the avennent of undue 
 concealment carries the case no further, and that unless actual fraud was 
 proved, the substance of the issue was not proved. It was decided in Tlte 
 North British Insurance Company v. Lloyd^ that the rule that all material 
 circumstances known to the assured must be disclosed, is peculiar to 
 contracts of insurance, and that it does not extend to contracts of guarantie. 
 I concur in this, which, I tliink, is founded upon principle as well as autho- 
 rity. It was pointed out by the Chief Baron, in the argument in the 
 present case, that a surety is, in general, a friend of the principal debtor, 
 acting at his request, and not at that of the creditor; and in ordinary cases 
 it may be assumed that the surety obtains from the principal all the infor- 
 mation which he requires ; and I think that great practical mischief would 
 ensue, if the creditor were by law required to disclose everything material 
 known to him, as in a case of insurance. If it were so, no creditor could 
 rely upon a contract of guarantie unless he communicated to the proposed 
 sureties everything relating to his dealings with the principal to an extent 
 which would, in the ordinary course of things, be .so vexatious and annoy- 
 ing to the principal and iiis friends, the intended sureties, that such a rule 
 of law would practically prohibit the obtaining of contracts of suretyship 
 in matters of business. This is well pointed out by Lord Campbell, in his 
 judgment in Hamilton v. Watson^. But I think, both on authority and on 
 principle, that when the creditor describes to the proposed sureties the 
 transaction proposed to be guaranteed (as in general a creditor does), that 
 description amounts to a representation, or, at least, is evidence of a 
 representation that there is nothing in the transaction that might not 
 naturally be expected to take place between the parties to a transaction 
 such as that described. And if a representation to this effect is made to 
 the intended surety by one who knows that there is something not natu- 
 rally to be expected to take place between the parties to the transaction, 
 and that this is unknown to the person to whom he makes the representa- 
 tion, and that if it were known to him he would not enter into the contract 
 of suretyship, I think it is evidence of a fraudulent representation on his 
 part. I think that it appears in Hamilton v. Watson' that such was the 
 opinion of Lord Campbell, and I think that on this principle are founded 
 the judgments of Lord Eldon in Smith v. The Bank of Scotland^, and of 
 the Court of King's Bench in Pidcock v. Bishop'. In the present case the 
 plaintiffs had no personal communication with the defendant, the surety, 
 
 ' 10 Exch. Eep. ,523; s.c. 24 Law J. Eep. (n.s.) Exeh. 14. 
 = 12 CI. & F. ion. 3 1 Do^y_ 272. ^ 3 B. & C. 605.
 
 SECT. Il] LEE V. JOXES. 599 
 
 and when they sent the agreement to hiui for execution they sent it by an 
 agent, who had no authority from the plaintiffs to make any statement 
 wliatever, or to do anything more than obtain the defendant's signature to 
 the agreement tlius sent. The argument for the plaintifls before us was, in 
 substance, tliat under such circumstances, though there might be a conceal- 
 ment or non-disclosure of material facts, there was not and could not be 
 any misrepresentation on the plaintiffs' part, and that without it there 
 could be no fraiid ; and during the argument I was inclined to be of tliat 
 opinion ; but on consideration I liave come to the conclusion, that in tliis 
 case there was evidence of intentional deceit by a false representation, of 
 the kind I have above referred to, amounting to actual fraud. The written 
 agreement, wliich before it was executed tlie plaintiffs sent to the defendant, 
 recites, that Packer, the principal, had been for some time salesman to the 
 plaintiffs on terms by which he was, in substance, to be a del credere agent, 
 settling and paj'ing for what he had sold monthly, and that tliey had 
 required from him security to induce them to continue him in the employ- 
 ment, and stipulated that the defendant and others should give them a 
 floating and continuing guarantie for tlie term of tliree years from the date 
 thereof, to secure the amount of any balance which might, at any time, 
 be due to them on the coal account. I think this was evidence of, or 
 rather, if not qualilied by otlier matters, amounted to a representation tliat 
 there was nothing in the transaction between the plaintiff and Packer 
 which might not, in the ordinary course of affairs, be expected to have 
 taken place between them as parties to such a transaction. It is stated in 
 the case that at the time when this agreement was sent to tlie defendant, 
 a balance of 1,332^. was actually then due from Packer, he not liaving for 
 a very considerable time settled for and paid up at the expiration of the 
 current month, as stipulated by the agreement. It is, however (in favour 
 of the plaintiti's), further stated, that there was no evidence that the plain- 
 tiffs were aware tliat Packer had actually received the money from the 
 customers. Now, whether the handing the agreement by the plaintiffs to 
 the defendant amounted to an inaccurate representation or not depends, as 
 I think, on the question wliether, in such a transaction as that described in 
 tlie agreement, it might, or might not, naturally be expected that the 
 masters might have allowed a balance of this extent to accumulate, and 
 might have allowed the amount to stand over unsettled for so long a time. 
 In Hamilton v. Watson' the transaction was a security for a banker's cash 
 account, and the decision of the House of Lords was, that in such a case it 
 might be so naturally expected that the proposed principal had already 
 overdrawn his account, that there was no evidence of a representation that 
 he had not. In Smith v. the Bank of Scot/and'-, where the security was 
 given for the good behaviour of a bank agent, it was held, that an allega- 
 tion that the bank knew that the principal had misconducted himself in his 
 office, and that this fact was concealed from the sureties, ought to iiave 
 ' 12 CI. & F. 109. ' 1 Dow, 272.
 
 600 I'EE V. JONES. [chap. V 
 
 been admitted to proof in tlie Court below. I think the effect of Lord 
 Eldon's judgment in tliat case is, that it was so little to be expected that a 
 bank would continue in their service an agent who had already, by breach 
 of trust, run into their debt, that the application for security amounted, as 
 he says, to holding him forth to the sureties as a trustwortliy person — 
 1 Dow 292. I think that it must in every case depend upon the nature 
 of the transaction, whether the fact not disclosed is such that it is impliedly 
 represented not to exist, and that must generally be a question of fact 
 proper for a jury. If in this case the amount of the balance already due 
 had been small, or the period during which the accounts were left unsettled 
 short, there would, in my opinion, have been such a mere scintilla of 
 evidence as would not have warranted the jury in finding the verdict of 
 fraud, and the Judge would have been justified in withdrawing the ques- 
 tion from their consideration. But as it is, the amount of the balance 
 already due being, relatively to the amount of the security, so large, and 
 the period during which no settlement had taken place being so consider- 
 able, I think the Judge could not have witlidrawn the case from the 
 consideration of the jury, who might well come to the conclusion that the 
 sending of the agreement in these terms, amounted to an inaccurate repre- 
 sentation. This would not be enough to support the verdict on the plea of 
 fraud, unless it was further established, that the plaintifis made the inaccu- 
 rate representation, intending to deceive the defendant, and induce him to 
 enter into the contract in the belief that what was represented did exist ; 
 whilst the plaintiffs knew it did not exist. But of that also I think there 
 was sufficient evidence. The improbability that any one could suppose 
 that sureties would have entered into such an agreement, if they had 
 known the truth, is so great, that the jury might well think that the 
 plaintiffs knew that the defendant was in ignorance of it ; and if the jury 
 so thought, they might from that alone have drawn the inference that the 
 representation was fraudulently intended to deceive. This is strengthened 
 by the facts that the plaintiffs apparently avoided having any personal 
 communication with the proposed sureties, and sent the agreement for 
 execution by an agent, who had no authority from them to make any 
 statements, from which the jury might perhaps draw the further inference, 
 that the plaintifis took pains to avoid the risk of the sureties asking ques- 
 tions and being undeceived. It is not essential to constitute fraud that 
 there should be any misleading by express words. It is sufiicient if it 
 appears that the plaintiffs knowingly assisted in inducing the defendant to 
 enter into the contract by leading him to believe that which the plaintiffs 
 knew to be false, the plaintiffs knowing that if he had not been thus misled 
 he would not have entered into the contract. For the reasons above given, 
 I think there was, on this case, evidence to support the verdict; and con- 
 sequently the judgment, in my opinion, should be affirmed. 
 
 Bramwell, B. I think this judgment should be reversed. It is clear
 
 SECT. Il] LEE V. JONES. 601 
 
 tliat nothing turns on the defenflant being a surety. The question raised, 
 and properly raised, by the pleadings is, was the defendant's engagement 
 obtained by the plaintiffs' fraud, actual moral fraud t The question argued 
 before us was, was there evidence of such fraud "i The Court below says 
 there was ; but unfortunately does not point out in what it consisted. 
 With very great respect 1 see none, and I think it can be shewn there is 
 none. To constitute fraud there must be — first, the assertion of some- 
 thing false, which is not the case here ; or, secondly, the suppression of 
 something true, where there is a duty or profession of stating everything 
 material ; and here tliere is no such duty ; or, thirdly, what perhaps is 
 included in one of the foregoing, a suggestion of falsity by statement of 
 some facts, and suppression of others which would qualify those stated. 
 As if one should say A. was seised and died, B. was eldest son, entered 
 and enjoyed, and suppressed that A. had made a will and given B. a life 
 estate. To my mind there is nothing of that kind here. Perhaps, but 
 most improbably, the defendant inferred or guessed that no arrears were 
 due to the plaintiffs. I .should not have so concluded : on the contrary, I 
 should have concluded that there was some change in the circumstances of 
 the parties which induced the plaintiffs to require further security. But 
 supposing that the defendant's was a right conclusion, and supposing that 
 if he could not inform himself further, he was justified in acting on it, I 
 say that here he was not so justified, because he might, if he cared to know 
 them, have informed liimself of the actual facts from the plaintiffs, as if 
 they had refused to tell him he might have refused to be surety. I think 
 a man has great right to complain of another who charges him with fraud, 
 because he, the accuser, had not taken the trouble to make a few inquiries. 
 I really can see no evidence of any fraud, of anything dishonest in this 
 case. There is nothing inconsistent with the plaintiffs' honesty. But 
 when the facts are equally consistent with a conclusion one way or the 
 other, they are no evidence either way. I think the opinion that there 
 was evidence of fraud is founded on a misapprehension. Packer was not a 
 dishonest defaulter to the knowledge of the plaintiffs. He was liable to 
 them to a large amount, every shilling of which might have been due from 
 solvent debtors. The plaintiff's continued him a long time after in their 
 service. They sent the agreement of suretyship to the defendant, and left 
 it with him several days for him to make such inquiries as he thought fit. 
 He makes none. Suppose he had asked and been told the truth, could 
 anybody say that there had been any fraud or attempt at fraud ? Suppose 
 he had employed an attorney, would anyone say that there was any attempt 
 to deceive the attorney t The notion of fraud arises from the defendant 
 being likely to behave foolishly, to make no inquiry, making none and 
 being a surety. I think this very mischievous, that a man should have his 
 carelessness rewarded by liberty to call out Fraud ! — very mischievous that 
 people should be charged with fraud by careless persons simply on account 
 of their own carelessness. No one is safe if this is allowed. No one can
 
 602 LEK V. JONES. [chap. V 
 
 ever know that he has sufficiently guarded against the rash conclusions and 
 folly of tliose he deals with, and saved himself from the uncharitable and 
 foolish conclusion to which a jury may be disposed to come in favour of a 
 surety. 
 
 Crompton, J. The judgment I am about to deliver is one in which my 
 Brother Channell concurs. 
 
 The question in this case is, whether the Court of Connnon Pleas was 
 wrong in holding that there was some evidence of fraud to go to the jury. 
 It is quite clear that the mere non-disclosure of material facts will not 
 operate so as to avoid a contract of the nature of the one in this case, such 
 defence being, as pointed out in the case of The North British Insurance 
 Company v. Lloyd^, peculiar to the contract of insurance. Such non- 
 communication avoids the contract of insurance without fraud and how- 
 ever innocent the conduct of the party may be, on grounds peculiar to the 
 contract of insurance and not applicable to the case of a guarantie. I 
 cannot say that the Court below was wrong in holding that there was 
 some evidence of fraud to go to the jury in this case, or tiiat the learned 
 Judge who tried the case could properly have withdrawn it from the jury. 
 
 To constitute a fraudulent misrepresentation, it need not be made in 
 terms expressly stating the existence of some untrue fact ; but if it be made 
 by one party in such terms as would naturally lead the other party to 
 suppose t!ie existence of such state of facts, and if such statement be so 
 made designedly and fraudulently, it is as much a fraudulent misrepresen- 
 tation as if the statement of the untrue facts were made in express teims. 
 It seems to me that the defendant in the present case would be naturally 
 led by the guarantie, and the original agreement with Packer annexed 
 thereto, and the reference to the agreement with Mrs. Tinson, referred to 
 in the guarantie which is said to be supplemental to that agreement, to 
 suppose that a diflerent state of things existed from the real state of things 
 known to the plaintifls. It was known to the plaintifls that Packer the 
 principal had not carried out his original agreement with them, and that 
 there was a large sum due from him on his floating bills. By his agree- 
 ment with them, tlie monies to be received by him from the customers 
 from time to time were to be paid over and accounted for witliin six days, 
 and were to be applied to the floating bills. Surely on perusing such docu- 
 ments as were sent, the proposed sureties would be led to suppose that the 
 monies to be received from time to time would be applicable, in tlie first 
 instance, to the bills to be given from time to time, and not to a large 
 deficit on the old bills. In truth, none of the money to be received would 
 be applicable to the new transactions till the large balance was wiped ofi"; 
 and it is very unlikely that the surety would have joined in tlie new 
 guarantie had he been aware of the existence of the old debt. I think also 
 that the new sureties would naturally be led to suppose from the draft 
 
 1 10 Exch. Bep. 523 ; s.o. 24 Law J. Kep. (n.s.) Exch. 14.
 
 SECT. Il] LEE V. JONES. 603 
 
 guarantie, and from its being stated that tlieir engagement was to be 
 supplemental, and in addition to Mrs. Tinson's, tliat her guarantie was 
 practically applicable to the new dealings ; whereas, whether the defend- 
 ant's suretyship was applicable retrospectively or not, hers would really be 
 in effect aljsorbed by the lai-ge balance. I think, therefore, that there was 
 evidence that the defendant was led by the sending of the documents in 
 question to the belief in an untrue state of facts, where the knowledge of 
 the true state of facts would have prevented his joining in the contract of 
 suretyship. 
 
 It was said, indeed, that the plaintiffs sending the documents in this 
 shape may have been without any intentional fraud on their part, and that 
 they may merely have got the documents drawn by their professional 
 advisers in a proper state, and forwarded them without moral fraud. This 
 seems, however, to me to be a question wiiich the jury were to determine ; 
 and it is not necessary for me to consider whether in their place I should 
 have found the fraud. We are only to decide whether there was evidence 
 to go to the jury. The sending the documents to the defendant and 
 leaving them with him ; the largeness of the sum in arrear ; the improba- 
 bility that the defendant would have become surety if he had known the 
 real facts on the one hand, and on the other hand the circumstances of the 
 plaintiff's not having seen the proposed sureties and merely having sent the 
 papers to them, and the other circumstances referred to in the argument 
 were, as it seems to me, matters entirely for the jury ; and I cannot say 
 that the Court of Common Pleas were wrong in holding that there was 
 some evidence for their consideration, and I therefore think that the judg- 
 ment of the Court below should be affirmed. 
 
 Pollock, C. B. The question in this case is simply whether there was 
 any evidence of fraud on the part of the plaintiffs, such as to prevent them 
 from recovering from the surety the amount guaranteed. 
 
 The facts are very short and plain. James Packer acted as commission 
 agent for the plaintiffs, selling goods which they supplied and receiving 
 payment for them, charging a commission upon each transaction. He 
 gave bills to the plaintiff's which were to be paid at stipulated times. As 
 this involved considerable responsibility on the part of Packer, he originally 
 gave security to the plaintiffs by his mother, Sarah Tinson, to the amount 
 of 3001. The business went on, and his accounts became in arrear to some 
 extent, upon which the plaintiff's told liim that they could not allow his 
 employment to go on unless he found further security, whereupon he under- 
 took to do so, and procured the defendant and others to undertake to sign 
 the agreement on which this action is brought. This was a further 
 security for 300/. more, expressed to be supplemental and in addition to 
 the former ; so that tlie new sureties were to be liable for whatever Sarah 
 Tinson was to be liable to, and this was distinct notice that the suretyship 
 was to be retrospective. The plaintiff's never had any communication
 
 ()0-t HARVEY V. YOUNG. [CHAP. V 
 
 with the defendant, and never interfered in any way beyond sending the 
 agreement to be signed which they had been told by Packer that the 
 defendant had approved of, and which was true. It is said, there was in this 
 matter concealment or misrepresentation. In fact, there was no represen- 
 tation at all, and therefore there could not be misrepresentation; and as to 
 concealment, the plaintiffs never undertook to make any disclosure; and in 
 my judgment were not under any legal or moral obligation to make any 
 disclosure under the circumstances. . 
 
 It must be taken that the occupation of Packer was a profitable one — 
 one in which a prudent man might iiave recovered himself though he had 
 fallen into some difficulties. The plaintiffs say to him, if you can procure 
 from your relations or friends a further guarantie, we will allow you to 
 continue notwithstanding the present state of your accounts, but if you 
 cannot we will stop now. He undertakes to procure, and does procure a 
 further guarantie ; and the business therefore went on. Whether Packer 
 made to liis sureties a faithful and true representation of the state of his 
 affairs is entirely a matter of indifference ; if he did, then they have no 
 ground of complaint at all ; if he did not, it is no fault of the plaintiffs. 
 The defendant has trusted Packer, whom the plaintiffs would trust no 
 longer ; and Packer has deceived the defendant, but the plaintiffs never 
 directly or indirectly made any communication to the defendant on the 
 subject of the state of the accounts. It was, however, manifest that the 
 plaintiffs required further security, and retrospective security. It was 
 therefore the duty rather of the sureties to inquire, than of the plaintiffs 
 to inform them, what was the state of the accounts. In my opinion, there 
 is a total absence of any e'V'idence of fraud, and, I should add, no just ground 
 for any suspicion of it. I think the rule ought to be made absolute. 
 
 Judgment affirmed. 
 
 SECTION III. 
 Fraud. 
 
 HARVEY V. YOUNG. 
 In the King's Bench, Michaelmas Term, 1597. 
 
 [P^eported in Yeh-erton, 20.] 
 
 J. S. had a tei'm for years, and there being a discourse between 
 him and J. D. about buying that term, J. S. said and affirmed to J. D. that 
 the term was worth 150/. to be sold, upon which J. D. gave J. S. 150Z. for 
 the term. And afterwards J. D. ofter'd and endeavour'd to sell the term
 
 SECT, in] HAYI.EY I'. MERREL. 605 
 
 again, and coulil not obtain, nor get for tlie term 100/. whereupon lie 
 brought an action on the ease in nature of a disceit against J. S. and 
 declar'd ut supra, and tliat J. S. asseruit to him, that the term was worth 
 so much, to wliich assertion J. D., fidem adhibens, did buy the term for so 
 much money, but could not sell it again for so much money as was given 
 at fir.5t in fraud and deceit of the plaintiff to liis damages, &c., and upon 
 not guilty pleaded, it was found for tiie plaintiff, and alledged in arrest of 
 judgment, that the matter precedent did not prove any fraud ; for it was 
 but the defendant's bare assertion that the term was worth so much, and 
 it was the plaintiff's folly to give credit to sucli assertion. But if tlie 
 defendant had warranted tlie term to be of such value to be sold, and the 
 plaintiff had thereupon given and disbursed liis money, there it is other- 
 wise ; for tlie warranty given by the defendant is a matter to induce 
 confidence and trust in the plaintiff'. 
 
 BAYLEY V. MERREL. 
 In the King's' Bench, Trinity Term, 1615. 
 
 [Reported in Croke James, 386.] 
 
 Action upon the case. Whereas, 10th December, 1G1.3, there was 
 communication betwixt the plaintiff' and defendant, concerning the liiring 
 tlie plaintiff to carry for the defendant with horses and wain a load of 
 madder from Exliall, in the county of Essex, into Uppingham in the county 
 of Rutland ; and that then and there, to deceive him in tlie carriage 
 thereof, the defendant affirmed fraudulently, that the said load of madder 
 was 800 pound weiglit ; whereto he giving credit, undertook the charge of 
 the said madder, and that the defendant promised liim to pay for every 
 hundredweiglit 2s. Sd. And he giving credit that the said madder was 
 but 800 weight carried it according to the said agreement. And alleges 
 in facto that the said load of madder weighed much more than 800 weight, 
 viz. 2200 weight. By reason whereof liis horses drawing the said wain 
 with the load of madder, being laden with so great weight, were compelled 
 ita vehementer laborare et trahere, tliat seven of his horses which drew the 
 said wain, ratione inde peribant, per quod, &c. The defendant pleaded 
 iVbi guilty, and found against him ; and it was now moved in arrest of 
 
 1 This distinction is described by Lord Hardwicke in the case of Cleeve v. Gas- 
 coigne, Amb. 323, in the following manner : " Though when a man affirms a thing to 
 be so, which is otherwise, it is a falsity and fraud iu him, whether he knew it or not ; 
 yet that must be understood with a distinction. Wliere the affirmation is of a fact 
 which is in itself certain, as of the loss or missing of a ship, or that such a farm is let 
 at so much, it is so; but where it is matter of opinion, as of the state of health of any 
 person, or of the value of a farm that is unlet, it is not so." En.
 
 606 MEDINA V. STOOGHTON. [CHAP. V 
 
 judgment, that this action lies not. For he being hired to carry by 
 tlie liundred, it was his own folly to overload his horses ; and it was a 
 matter which lay in his own view and conusance ; and if he doubted of the 
 weight thereof, he niiglit have weighed it, and was not bound to give 
 credence to another's speech. And being his own negligence he is without 
 remedy. As where one buys an horse upon warranting him to have both 
 his eyes, and he hath but one eye, he is remediless ; for it is a thing which 
 lies in his own conusance, and such warranty or affirmation is not material, 
 or to be regarded. But otherwise it is in case where the matter is secret, 
 and lies properly in the conusance of him who NWarrants it, and cannot be 
 known to him who buys, or makes the contract ; for the law gives no 
 remedy for voluntary negligence. And of that opinion was the whole 
 Court, although it was said, that there was apparent fraud hei-e in him 
 who affirmed, &c. And peradventure the plaintift' was a stranger there 
 where he undertook the carriage, and had no weights to weigh it. But it 
 was answered, that it was his gross negligence, that he would undertake a 
 weight so far exceeding the affirmation, without causing it to be weighed'. 
 
 Wherefore the judgment was stayed. 
 
 MEDINA V. STOUGHTON. 
 In the King's Bench, Trinity Teem, 1700. 
 
 [Rcpoi-ted in 1 Lord Raymond, 593.] 
 
 Case. The plaintiff declared, that the defendant being possessed of 
 certain million lottery tickets, sold them to the plaintiff, affirming them to 
 be his own, whereas in truth they were the tickets of another man. The 
 defendant pleaded, that he bought them bond fide before the sale, and so sold 
 them bona fide ; in quo casu the plaintiff ought not to have his action, et 
 petit judicium de narratione et quod narratio cassetur. The plaintiff 
 demurred. Holt, Chief Justice : The plea is ill, and the action well lies. 
 Where a man is in possession of a thing, which is a colour of title, an 
 action will lie upon a bare affirmation that the goods sold are his own. 
 For in such case it amounts to a warranty, and so it was adjudged in this 
 court Mich. 1 Will. & Mar. B. R. between Gross and Gardmer, 3 Mod. 
 261. 1 Show. 68, where in case the plaintiff declared, that there being a 
 discourse between the plaintiff and defendant concerning the sale of two 
 bullocks then in the possession of the defendant, the defendant sold them 
 to the plaintiff, falsely assuming them to be his own, ubi revera they were 
 
 ' See the report of this case in 3 Bulstrode, 94, where Cboke, Justice, held that 
 " fraud without damage, or damage without fraud, gives no cause of action ; but where 
 these two do concur and meet together, there an action lieth." Ed.
 
 SECT. Ill] WARD V. IIOHIiS. 607 
 
 the Inillocks of J. S., and upon this reason it was afljurljied for the plaintiff, 
 after motion in arrest of judgment, according to "2 Cro. 19G. lioseiivll v. 
 Vaughan ; but otherwise in case of land, because there the purchaser may 
 search into tlie title. And Gould, Justice, said, that he drew the declara- 
 tion in tlie case of Gross v. Gardiner, and purposely shewed a possession 
 of the bullocks, for the queries turned upon that difference. 
 
 RISNEY V. SELBY. 
 
 In the Queen's Bench, Michaelmas Term, \10^. 
 
 [Reported in 1 Sulkeld, 211.] 
 
 Case, for that the plaintiff being in treaty with the defendant about 
 the purchase of such a house, the defendant did fraudulently affirm the 
 rent to be 30^. per annum, whereas it was but 20/., whereliy he was 
 induced to give so much more than the house was worth. Upon not 
 guilty pleaded, and verdict for the plaintiff, it was moved in arrest of 
 judgment, tliat this was an improper inquiry in the plaintiff, and he was 
 over-credulous in taking the defendant's word for it ; but the plaintiff liad 
 his judgment, for the value of the rent is matter that lies in the private 
 knowledge of the landlord and tenant, and if they affirm the rent to 
 be more than it is, the purchaser is cheated, and ought to have a remedy 
 for it. 
 
 THOMAS WARD Appellant; 
 
 AND 
 JOSEPH HOBBS Respondent. 
 
 In the House of Lords, November 12, LS78. 
 
 [Reported in Law Reports, 4 Appeal Cases, 13.] 
 
 In this case the Court of Appeal had reversed a judgment given by the 
 Queen's Bench in favour of the plaintiff in the action, now tlie appellant 
 here. 
 
 In August, 1875, Hobbs was possessed of a herd of about ninety pigs, 
 forty of which were sold to a Mr. Farmer, a miller, residing near Thatcham 
 in Berkshire. Farmer afterwards, on the 9th of September, complained 
 to Hobbs that the pigs purchased from him scoured, and it was alleged 
 that scour and want of appetite were symptoms of typhoid fever in pigs ;
 
 COS WARD r. HOBBS. [CHAP. V 
 
 Hobbs denied that he knew anything about tlie pigs being ill or aflected 
 in any way. On that 9th of September Hobbs sent to the Newbury 
 market thirty-two of his pigs, to be there sold by auction ; Hobbs would 
 not give any warranty with them. Among the conditions of sale were the 
 following : — 
 
 " 4. The lots, with all faults and errors of description (if any), to be 
 paid for and removed at tlie buyer's expense immediately after the sale." 
 
 " 6. No warranty will be givenby the auctioneer with any lot, and, 
 as all lots are open for inspection previous to tlie commencement of the 
 sale, no compensation shall be made in respect of any fault, or error of 
 description, of any lot in the catalogue. 
 
 " 7. If the purchaser shall neglect or fail to comply with the above 
 conditions his deposit money shall be forfeited, and any lot or lots that 
 may be unclaimed by the time limited shall be resold by public or private 
 sale, and the deficiency (if any), together with the charges attending such 
 re.sale, shall be made good by the defaulter at this sale." 
 
 There was an inspector of the market at Newbury, whose duty it was 
 to report to the justices of the borough the state of the animals brought 
 into the market. The inspector made his report in the usual way, saying 
 that he had not observed anything objectionable in the pigs. Ward 
 bought the thirty-two pigs at the auction, and paid 44^. for them, which 
 was a fair price at that time and place for healthy pigs. They exhibited 
 symptoms of illness on being driven to the plaintiff's farm, and all but one 
 of them afterwards died of typhoid fever, and the plaintiff also lost some 
 other pigs which he had bought of other people, and which he asserted liad 
 been infected with disease from Hobbs' pigs. He thereupon brought an 
 action for damages to recover compensation for the loss he had thus 
 suffered, and in his statement of claim suggested a warranty', and alleged 
 that the pigs liad been sent for sale at an open and public market at 
 Newbury. 
 
 The cause came on for trial before Mr. Justice Brett at the Berkshire 
 Summer Assizes in 1876, when the above facts were proved in evidence, 
 and it was also proved that the pigs shewed symptoms of disease as they 
 were being driven from the market to Ward's farm. On the part of the 
 defendant Hobbs there was the most positive denial that he knew or even 
 suspected that the pigs were tainted with disease, and the sickness of the 
 pigs shewn on the way from Newbury market to the plaintiff's farm, was 
 attributed to their being driven a considerable distance without food being 
 supplied to them on the road. It was also urged that no veterinary 
 surgeon had been called in to attend the pigs, nor had seen them until 
 after deatli, so that he could form no idea as to the time at which the 
 disease had first attacked them. Some evidence was given with a view to 
 
 1 The words were: "The plaintiff says, that by warranting certain pigs to be free 
 from any iufectious disease, the defendant sold thirty-two of such pigs to the plaintiff 
 at and for the sum of £44.''
 
 SECT, in] WARD r. IIOBBS. 609 
 
 sliew that the defendant liad been aware, before he sent the pigs to 
 Newbury on the 9th of September, that they were infected witli tiie 
 disease. On the other hand tiie defendant's son was called as a witness, 
 and swore that it was his duty to look after tliese pigs, that he had done 
 so, and that he never had any reason to believe that tliey were suffering 
 from any disease. The defendant's counsel relied upon the absence of any 
 evidence of warranty, or of fraud, or deceit, or of false representation, or 
 of the fact that the pigs were diseased at the time of the sale. The 
 learned Judge left the wliole evidence to the jury, stating that in his 
 opinion there was some evidence that the pigs had a disease at the time of 
 the sale by auction, and that the defendant knew it; that he must take 
 tiie verdict of tlie jury as to the cause of the death of the thirty-one pigs, 
 and of the other pigs which died on the plaintiif 's premises ; and he asked 
 the jury whether the defendant knew that his pigs had a dangerous and 
 infectious disease. The jurors returned a verdict for the i^laintifF, and 
 assessed damages in respect of the loss of the thirty-one pigs and of the 
 sixteen other pigs at 66^. Leave to move to enter a verdict and judgment 
 for the defendant was reserved. The motion was made in the Queen's 
 Bench and the rule discharged'. The case was taken to the Court of 
 Appeal, where the decision of tlie Court below was reversed and judgment 
 entered for the defendant'. This appeal was then brought. 
 
 Mr. Henri/ JIat/ieu's, Q.C., and j\Ir J. Bros, for the appellant: — 
 
 There was evidence to go to the jury that the defendant knew that the 
 pigs were suflering from a contagious disease at the time of the sale, and 
 that he had acted in a manner calculated to deceive the dealers in the 
 market ; and for the purpose of deceiving them. Assuming the proof of 
 his knowledge to be sufficient, then he was liable in damages, notwith- 
 standing the absence of any direct warranty as to tlie soundness of the 
 pigs. For his sending them to market under such circumstances was by 
 the 32 & 33 Vict. c. 70, forbidden in express terms, and was an illegal act 
 the doing of which subjected him to penalties. His sending them to 
 market must therefore be treated as a representation that he was not 
 doing what the statute forbade, and amounted to a representation which 
 deceived tlie plaintiff' into the belief that the pigs were tit objects of sale 
 and purchase. Any one honestly acting on that representation, and then 
 suffering from it because he had been deceived by it, as it was false, had a 
 right of action in respect of the damage he thereby suffered. I'he violation 
 of a statutory duty, if it occasioned damage to an individual, gave him a 
 right to recover damages. Now here the evidence was strong to shew 
 that the defendant knew that the pigs were diseased, and the jury had 
 found that to be the fact. 
 
 [The Lord Chancellor referred to Hill v. Balln'.] That case might 
 be accounted for by the fact, that the declaration only alleged a sale of a 
 glandored horse, but did not state anything which shewed that the sale 
 
 1 2 Q. B. D. 331. - 3 Q. B. D. V.O. ' 2 U. A- N. 200; 27 L. J. (Ex.) 4.5. 
 F. -"{y
 
 610 WARD V. HOEBS. [cHAP. V 
 
 li.ul been iiiado in a place or manner forbidden by the statute. Here the 
 statement of claim alleged that the pigs had been sent to "an open and 
 public market at Newbury." 
 
 The defendant here must be treated as having made a misrepresenta- 
 tion on the subject, and must be subject to all the consequences of making 
 it. This was not like the case of Cook v. Warinr/', which had been relied 
 on in the Court below, for here negligence was out of the question, for 
 these pigs had been wilfully sent to market, and the scienter which was 
 wliolly wanting in that case, was abundantly proved here. Baglehole v. 
 Walters^ was not applicable, for there, though the defendant knew of the 
 defective state of the ship he offered for sale, and on that account would 
 have been held liable, the ship was open to inspection, the defects in it were 
 visible, and might have been seen at once by any one ; while here the 
 disease was and must be unknown to any purchaser, for no one could by 
 mere inspection make himself acquainted with the fact of its existence. 
 In Bodger v. Nichols" the defendant succeeded on the ground that theie 
 was no sufficient evidence that he had any knowledge that the cow he sold 
 was diseased ; but in the course of his judgment there, Mr. Justice 
 Blackburn said': " I entertain no doubt, but it is not necessary to decide 
 the point, that the defendant, by taking the cow to a public market to be 
 sold, though he does not warrant her to be sound, yet thereby furnishes 
 evidence of a representation that, so far as liis knowledge goes, the animal 
 is not suffering from any infectious disease. To say otherwise would be to 
 run counter to the common sense of mankind." And the other Judges 
 expressed tliem selves in a similar way. 
 
 A representation, such as sending the pigs to a public market must be 
 taken to be, subjects the offending party to criminal, and ought to subject 
 him to civil responsibility. In Rex v. Bernard^ a person at Oxford went 
 into a shop attired in the cap and gown of a Fellow of a college, and so 
 obtained goods, and that was held to be a representation which, being 
 false, subjected him to an indictment. In some cases a smaller matter 
 had been held to make a party liable for the act of his agent. In Hill v. 
 Gray" Lord EUenborougli distinctly laid it down that the vendor of a 
 picture, whose agent allowed a person under a delusion as to its being the 
 production of a particular painter, to become the purchaser, the agent 
 knowing that it was a delusion, but not correcting it, must lose the sale. 
 And in Jones v. Bowden' where there was, not a statutory duty, but 
 merely a custom of the trade, to announce that goods had been damaged 
 by sea-water and re-packed, and goods which had been so damaged and re- 
 packed were sold without that notification, although the goods were left 
 open for inspection, the seller was held liable to the purchaser for damage. 
 In Eicholz V. Ba7mister" the doctrine of warranty of title was considered, 
 
 1 2 H. & C. 332. = 3 Camp. 15i. ' 28 L. T. 441. ■• At L. T. p. 445. 
 
 = 7 C. cfc P. 784. 6 1 stark. 434. ? 4 Taunt. 847. 
 
 « 17 C. B. (N.s.) 708 ; 34 L. J. (C. P.) 105.
 
 SECT. Ill] WAUL) ('. iionns. Cll 
 
 and oil tlie sale of goods, witliout any warrauty of title given, the conduct 
 of the vendor was held to amount to a representation that tlie person 
 selling had a title to sell; and Peto v. Blades^ shewed that, under such 
 circumstances as existed here, even the sheriii's auctioneer might be held 
 liable for a representation made at the time of the sale, tliougli there was 
 no warranty given. In Shepherd v. Kain° a ship was described as 
 "copper-fastened," but it was expressly declared that it was to be taken 
 "with all faults"; it was open to inspection, it was purchased by the 
 plaintiff, who proved at the trial that it was not what was called in the 
 trade a " copper-fastened " vessel, and, notwithstanding the restriction as 
 to taking it with "all faults," the seller was held liable. The offering of 
 the pigs for sale was in this case an implied warranty that they were fit to 
 be sold as pigs ; it was certainly a representation which made the vendor 
 liable. Even the gratuitous permission to use a thing — a loan of it — has 
 been held to imply a warranty that it was tit for the use for which it was 
 lent, and if injury followed from its known unfitness the lender has been 
 held liable : Blakemore v. The Bristol and Exeter Railway Company'. 
 The knowledge was the principle on which the Court proceeded \ In 
 Brass v. Maitland' it was held that the .shippers of goods were impliedly 
 bound not to deliver on board ship goods of a dangerous nature unless 
 they were properly packed so as to prevent mischief arising from them. 
 The same doctrine was, after the fullest deliberation, adopted and declared 
 in Burnby v. Bolleit"; and Emmerton v. Matthews', where all the old 
 authorities were cited and discussed, although in the latter ca.se the 
 defendant was held not to have incurred any liability. But that was 
 because he had in fact bought an article which he believed to be good, and 
 without taking it into his own possession had sold it again shortly after- 
 wards to a voluntary bidder for it, having no reason whatever even to 
 suspect that it was unfit for sale. The piinciple of all these cases was 
 that if the seller liad reason to doubt the soundness of the article sold, still 
 more if he believed it to be unsound, he was resjjonsible. Here the 
 conduct of the defendant shewed that he must have known that his pigs 
 were infected, so he sent them to market, did not himself appear as their 
 seller, but employed an auctioneer, and refused any warranty. The case 
 was one peculiarly tit for the decision of a jury, and the jury felt no 
 hesitation in declaring the defendant liable as a person who had sold with 
 a full knowledge of the real state of the animals he sold. 
 
 Mr. Benjamin, Q.C., and Mr. //. B. Green, for tlie respondent, were 
 not called on. 
 
 The Lord Chancellor (Earl Cairns) : — 
 
 My Lords, in this case the respondent sold a certain number of pigs by 
 auction at Newbury market, and the appellant became the purchaser of 
 
 » 5 Taunt. 6.37. - 5 B. & A. 240. ^ « gl. & Bl. 103.5. •< Ibid. 10;jl. 
 
 ■■ 6 El. & Bl. 470. '^ Hi M. & W. 644. ■ 7 H. & N. 5H0. 
 
 :59— '2
 
 612 WARD V. HOBBS. [cHAP. V 
 
 those pigs at tlie auction. There were conditions of sale under which the 
 pigs were sold, and the fourth and sixth of those conditions ran in these 
 words : — [His Lordship read them, see ante, p. 608.] My Lords, it turned 
 out that almost immediately after the sale the pigs, in the hands of the 
 purchaser, shewed unmistakable symptoms of being affected with a 
 contagious and infectious disease, viz. typhoid fever ; they rapidly died off, 
 and nearly all of them ultimately died. Your Lordships have not heard 
 the counsel for tlie respondent in this case, and therefore all that I shall 
 say upon this head is this : that if the finding of the jury is a correct 
 inference from the facts of the case, that the pigs were infected with this 
 disease at the time of the sale, and the respondent knew it, then beyond 
 all doubt the respondent was, both morally and legally, highly culpable. 
 
 But the question is, Is there a right of action on the part of the 
 appellant 1 
 
 Now the appellant in his claim puts the case in this way : he says tliat 
 by warranting the pigs to be free from any infectious disease the defendant 
 induced him to buy them ; and then he alleges that " even if the defendant 
 did not warrant the pigs, the plaintiff says that the defendant either 
 knowingly, or having good reason for believing that the pigs were suffering 
 from an infectious disease, offered them for sale at a certain open and 
 public market held at Newbury, and sold thirty-two of them to the 
 plaintiff for HI.;" then he says that "the defendant knew that the 
 plaintiff was a farmer, and that the pigs would be placed with other pigs, 
 and would also be turned into certain stubble fields." 
 
 Now with regard to the allegations in the statement of claim, 
 undoubtedly there was no warranty, and the case in that respect is 
 unsupported. As to the other allegation in the claim that, sinipliciter, 
 from the fact of his sending the pigs when they were in this state to the 
 market, a right of action arises, that was not mainly, if at all, the ground 
 upon which the case was rested at your Lordships' Bar. The counsel for 
 the appellant contended that from what took place at the trial, and after- 
 wards, any technicality founded upon the claim was out of the question, 
 and that the appellant might succeed, if he could, by shewing that on the 
 facts as they were proved there was any right of action on his pai't on any 
 ground whatever. 
 
 The great contest at your Lordships' Bar was this : the appellant 
 contended that the respondent had made a representation which was 
 untrue in point of fact, and that the action lay as in the nature of an 
 action for deceit. Now, my Lords, there can, I apprehend, be no doubt of 
 this proposition, that if a man expressly states upon a sale, that he gives 
 no warranty, and that the goods sold must be taken with all their faults, 
 but if he goes on expressly to say, in addition to that, that so far as he 
 knows, or believes, or has reason to believe, the goods are free from any 
 particular fault, and that the animals (if it be animals that are sold) are 
 free from any disease, if I say he expressly states that, and if it can after-
 
 SECT. Ill] WARD r. HOliUS. 01 3 
 
 wards be proved tliat to his knowledge the animals were tainted with the 
 disease to which lie referred, tlien there can be no doubt that, notwith- 
 standing the negation of warranty, an action would lie for deceit for the 
 false representation. Tliere is no difficulty in reconciling these two express 
 statements, viz., the one express statement that he does not warrant, and 
 that the property must be taken witli its faults, and the other express 
 statement that so far as lie knows or believes, the article sold is free from 
 a particular fault. Upon that part of the case, even if your Lordships had 
 heard the counsel for the respondent, there would, I think, have been no 
 cont ro versy. 
 
 But, my Lords, the question here is, not how two express statements 
 of the kind that I have described are to be made to stand together, but 
 whether in addition to the express negation of warranty which I have 
 described, there was any other representation at all. 
 
 Now, my Lords, any representation in words there clearly was not in 
 this case. The statement, and the only statement, actually made was the 
 one contained in the two conditions of sale which I have read. Beyond 
 that not a word was said or is alleged to have been said on the part of the 
 auctioneer, and the respondent never, in any way, came in contact with 
 the appellant. But what was contended at your Lordships' Bar was this, 
 that although there was no express representation made in words, yet 
 there was conduct on the part of the respondent which amounted to a 
 representation, and it was endeavoured to make that out in this way : It 
 was said, There is an Act of Parliament, the Contagious Diseases (Animals) 
 Act, which enacts tliat any person (I am stating the effect of the clause) 
 who sends an animal having, at the time, upon it an infectious or 
 contagious disease, to any public or open place, shall be guilty of an 
 offence under the Act, unless he shall prove that he was not aware that 
 the animal was so tainted with disease ; and it was said, therefore, that 
 the respondent here from the mere fact of sending his pigs into a public 
 market must be taken, being of course held to be aware of the law upon 
 the subject, to be representing that he was complying with, or at all events 
 not infringing, the law, and that the animals were not tainted with any 
 infectious or contagious disease. 
 
 Now, my Lords, I think it always desirable to abstain as far as possible 
 from expressing an opinion upon a case which is not actually the case 
 under consideration, and I desire liere to be held free from expressing any 
 opinion as to what, in a case in which, there being no negation of 
 warranty, no statement such as I have read from the two conditions of 
 sale in this case, ought to be the law as to a man who sent his pigs to a 
 public market knowing them at the time to lie tainted with disease. I 
 observe that in a case in the Court of Queen's Bench, Bodyer v. Nichols', 
 coming on appeal I think from a decision of a County Court Judge, my 
 noble and learned friend Lord Blackburn (or, as he then was, Mr. Justice 
 
 ' 28 L. T. 441.
 
 614 WAUD V. IIOBBS. [chap. V 
 
 Blackburn), seems to have tlirown out an opinion tliat in a case of that 
 kind, there being notliing upon one side in the shape of statement or 
 negation, and there being simply the fact of a man sending diseased 
 animals to a pulJic market to be sold, that must be held to be a represen- 
 tation by conduct that the animals were free from disease, and that the 
 person so sending them might be lialile for the consequences of that 
 representation, if it turned out to be untrue. My Lords, I repeat that I 
 desire, so far as I am concerned, to hold myself unpledged if such a case 
 had to be considered. But that, as it seems to me, is not the case which 
 your Lordships have now to consider. Your Lordships have here to 
 consider an actual, clear, unqualified statement, in writing, on the one 
 hand, and no statement whatever, even in mere words, upon the other 
 hand, but an attempt to raise a conclusion as to an implied statement, from 
 conduct. The words of the statement on the one side are perfectly clear ; 
 they are that the vendor will not warrant the goods — that they are open 
 to inspection, that the purchaser might inspect them, and that tlie 
 purchaser must take them with all their faults. Now, my Lords, I hold 
 that in order to countervail or qualify that, and to cut it down, there must 
 be something as clear in statement in an opposite direction. If there had 
 been tliat representation in words which I began by supposing, namely, 
 that notwithstanding that negation of warranty the vendor said that he 
 believed the animals were free from disease, that might be the foundation 
 of an action for deceit ; but it seems to me that there is no authority and 
 no principle upon which, in the face of a clear and unqualified statement 
 on the one hand, such as I have described, that the purchaser must take 
 the articles with all their faults, you are to raise, from the mere circumstance 
 of his sending the animals to the market, the implication of a representa- 
 tion on the other hand that the animals were in the belief of the vendor 
 free from disease. 
 
 I, therefore, my Lords, on this part of the case entirely agree with 
 that which was the unanimous conclusion of the Court of Appeal in this 
 case. 
 
 But, my Lords, there were some minor points in the case suggested as 
 arguments upon which the appeal might be sustained, and I will refer to 
 them very shortly. Your Lordships have not heard the counsel for the 
 respondents, and possibly there might be some question whether some of 
 those points were open, but I will take tliem as they were urged. 
 
 The first of these which I call the subsidiary points in the case was 
 this : it was said that there was here a breach of statutory duty, and that 
 wherever you have a breach of a statutoiy duty and any person wronged by 
 it, the person wronged has a right of action. Now I do not stop to 
 consider how far that proposition can be supported as a general proposi- 
 tion ; a good deal might be said upon that subject ; but it is sufficient in 
 the present case to point out to your Lordships that the statutory duty 
 here is of this kind ; it is a duty not to send infected animals into a
 
 SECT. Ill] WARD V. IIOBRS. 615 
 
 public place ; for an obvious reason, lest they should by contact or 
 neighbourhood taint other animals and thereby occasion injury to the 
 pulilic. If in that state of things some person had come forward and 
 said, "You" (the respondent) "sent tainted animals into tliis public 
 place, and my animals, in tliat public place, by contact or neighbouriiood 
 were infected, and I suffered a loss," then I could understand the argu- 
 ment. But that is not wliat occurred here. What occurred in the public 
 place was the buying and the selling, and no tainting of other animals, 
 although it is said tliat after the pigs became the property of the 
 purchaser and were taken to his farm they tainted other animals which 
 were there. But that is not the gist of the enactment, and therefore it 
 appears to me that this argument altogether fails. 
 
 The next of the subsidiary points was this : it was said tliat tliat 
 whicli was sold here (this I think was rather a tigurative expression tlian 
 a serious argument) was not really a lot of pigs but a mass of disease — of 
 typhoid fever. My Lords, to that all I can say is, that a pig having 
 typhoid fever appears to me not to lose its identity any more than a man 
 liaving typhoid fever ceases to be a man ; and therefore the thing sold 
 was that wliich it was professed to sell. 
 
 Then again it was said, and this was the last of the minor points, that 
 what was sold here was not merely infected by disease, but was a noxious 
 and dangerous thing, certain not only to be useless in itself but to be a 
 source of evil and danger wherever it might be carried, and it was likened 
 to the case of a person selling explosive substances without any warning 
 being given to the purchaser, and without its being known or being made 
 clear that the possession of the substances was attended with danger. My 
 Lords, there again I should not wish to express any opinion as to how far 
 that argument might be urged in a case where there was no e.xpress state- 
 ment upon the subject of the thing sold ; it is sufficient to say that it 
 seems to me that where you have an article sold with a statement, not 
 merely that the vendor does not warrant it, but that the purchaser must 
 take it with all its faults, this point really becomes a bi-anch of the first 
 point to which I have referred ; and you cannot therefore contend that 
 the purchaser is afterwards to be at liberty to turn round and say, "There 
 was this fault in the article which I bouglit which makes it a dangerous 
 article for me to become tlie possessor of." 
 
 My Lords, those were the arguments which your Lordships heard 
 urged with great skill and ingenuity by the learned counsel on the part of 
 the appellant, but it appears to me that they all failed, and that the 
 decision of the Court below ougiit to be affirmed. I move your Lordships, 
 therefore, that the appeal be dismissed with costs. 
 
 ' Lord Selborne : — 
 
 My Lords, I feel compelled to agree in the judgment moved by my 
 
 ' The judf,'ment of Lord O'llasan is omitted. Ed.
 
 616 POLHILL V. WALTER. [CHAP. V 
 
 noble and learned friend on the woolsack, though I confess I do so witli 
 some reluctance. 
 
 Upon the question of implied representation I have ne^'er felt any 
 doubt. Such an implication should never be made without facts to 
 warrant it, and here I find none, except that in sending for sale (though 
 not in selling) these animals, a penal statute was violated. To say that 
 every man is always to be taken to represent, in his dealings with other 
 men, that he is not, to his knowledge, violating any statute, is a refinement 
 which (except for the purpose of producing some particular consequence) 
 would not I think appear reasonable to any man. 
 
 The argument which, for some time, most weighed with me was, that 
 for a man to sell to another, without disclosing the fact, an article which 
 he knows to be positively noxious, and which the other man does not 
 know to be so (even though he expressly negatives warranty, and says that 
 the purchaser must take his bargain with all faults) is an actionable 
 wrong. I confess I should not be sorry if the law were so ; but I know 
 no authority for the proposition that such is the law, even ^lath respect to 
 the particular case of infectious disease in animals sold. The very nature 
 of the condition that the buyer is to take the animals with all faults 
 implies that they may be diseased, without any distinction between 
 infectious and non-infectious disease ; and I cannot think that the legisla- 
 tion, which has recently taken place in the public interest, against 
 particular acts tending to propagate such disease, can make that an 
 actionable wrong, as between the parties to a private contract, which 
 would not be so without it. 
 
 Judgment of the Court below affirmed, and ap])eal 
 dismissed viith costs. 
 
 POLHILL V. WALTER. 
 In the King's Bench, January 20, 1832. 
 
 [Reported iti 3 Barnewall and Adolphus, 114.] 
 
 Declaration stated, in the first count, that J. B. Fox, at Pernambuco, 
 according to the usage of merchants, drew a bill of exchange, dated the 
 23rd of April, 1829, upon Edward Hancorne, requesting him, sixty days 
 after sight thereof, to pay Messrs. Turner, Brade, and Co., or order, 
 liOl. 16s. 8d. value received, for Mr. Robert Lott ; that afterwards the 
 defendant well knowing the premises, did falsely, fraudulently, and 
 deceitfully represent and pretend that he was duly authorised by Hancorne 
 to accept the said bill of exchange according to the usage of merchants, on
 
 SECT. Ill] POLHILL V. WALTER. 617 
 
 behalf and by the procuration of Hancorne, to whom the same was so 
 directed as aforesaid, and did then and there falsely and fraudulently 
 pretend to accept the same by the procuration of Hancorne ; that the said 
 bill of exchange was indorsed over, and by \arious indorsements came to 
 the plaintiff, of which the defendant had notice ; that the plaintiff, relying 
 upon the said pretended acceptance, and believing that the defendant had 
 authority from Hancorne so to accept the bill on his behalf, and in con- 
 sideration thereof, and of the indorsement, and of the delivery of the bill 
 to him the plaintiff, received and took from the last indorsers the bill as 
 and for payment of the sum of money in the bill specified, for certaui 
 goods and merchandises of the plaintiff sold to the indorsers ; that when 
 the bill became due, it was presented to Hancorne for payment, but that 
 he, Hancorne, did not nor would pay the same, whereupon the plaintiff 
 brought an action against Hancorne as the supposed acceptor thereof ; and 
 that by reason of the premises, and the said false representation and 
 pretence of the defendant, the plaintifi' not only lost the sum of money in 
 the bill of exchange mentioned, which has not yet been paid, but also 
 expended a large sum, to wit, i2l. 7s., in unsuccessfully suing Hancorne, 
 and also paid 17^. to him as his costs. The second count, after stating the 
 drawing of the bill according to the custom of merchants, by Fox, as in the 
 first count, alleged that the defendant, well knowing the premises, did 
 falsely and deceitfully represent and pretend that he, the defendant was 
 duly authorised by Hancorne to accept the bill according to the said usar'e 
 and custom of merchants, on behalf and by the procuration of Hancorne 
 to whom the same was directed, and did accept the same in writing under 
 pretence of the procuration aforesaid ; that by various indorsements the 
 bill came to the plaintiff; that he, the plaintiff, relying on the said 
 pretended procuration and authority of Hancorne, and in consideration 
 thereof, and of the said acceptance, received and took the bill as and for 
 payment of a sum of money in the bill specified, in respect of goods sold by 
 the plaintiff. The count then stated the presentment of the bill to 
 Hancorne and liis refusal to pay, and averred that it became and was the 
 duty of the defendant to pay the sum in the bill specified, as the acceptor 
 thereof, but that he had refused. There was a similar allegation of special 
 damage as in the first count. Plea, not guilty. At the trial before Lord 
 Tenterden, C. J., at the London sittings after Hilary term, 1831, it appeared 
 in evidence that the defendant had formerly been in partnership with 
 Hancorne, but was not so at the time of the present transaction. The 
 latter, however, still kept a ceunting-house on the premises where the 
 defendant carried on business. The bill of exchange drawn upon 
 Hancorne was, in June, 1829, left for acceptance at that place, and, after- 
 wards, a banker's clerk, accompanied by a Mr Armfield, then a partner in 
 the house of the payees, called for the bill. The defendant stated that 
 Hancorne was out of town, and would not return for a week or ten days, 
 and that it had better be presented again. Tiiis the clerk refused, and
 
 G18 POLHILL V. WALTER. [CHAP. V 
 
 said it would be protested. Armficld then represented to the defendant 
 that expense would be incurred by the protest, and assured him tliat it 
 was all correct ; whereupon the defendant, acting upon that assurance, 
 accepted it per procuration of Mr. Hancorne. After this acceptance, it 
 •was indorsed over by the payees. On the return of Hancorne, lie 
 expressed his regret at the acceptance, and refused to pay the bill. The 
 plaintiff sued him, and, on the defendant appearing and stating the above 
 circumstances, was nonsuited. The present action was brought to recover 
 tlie amount of the bill, and the costs incurred in tliat action, amounting in 
 the whole to 196/. The defendant's counsel contended that as there was 
 no fraudulent or deceitful intention on tlie part of the defendant, he was 
 not answerable. Lord Tenterden was of that opinion, but left it to tlie 
 jury to determine whether there was such fi-audulent intent or not ; and 
 directed them to find for the defendant if they thought there was no 
 fraud, otherwise for the plaintifT; giving the plaintiff leave to enter a 
 verdict for the sum of 196/. if the Court should be of opinion that he was 
 entitled thereto. The jury found a verdict for the defendant. In the 
 ensuing Easter term Sir James Scarlett obtained a rule nisi, according to 
 the leave reserved, against which in the last term cause was shewn by 
 
 Campbell and F. Kelly. The jury having negatived all fraud and 
 deceit, it must now be assumed that the defendant, when he represented 
 that he had authority to accept the bill, bona fide believed that he had 
 such authority ; and if that be so, he is not liable in this action by an 
 indorsee. Where there is a contract and warranty, the party may declare 
 in tort, if it be broken, without proof of fi'audulent intent, Williamson v. 
 Allison^; but here was no contract and warranty. As to the first count, 
 striking out the allegation of fraud, the charge remaining is, that the 
 defendant falsely represented that he had authority to accept the bill for 
 Hancorne, and did accept it in the name of the latter as by his procura^ 
 tion ; and that the bill being afterwards indorsed to the plaintiff, Hancorne 
 refused payment, whereby the plaintiff was injured ; and then the question 
 is, whether a party who accepts a bill in the name of another, representing 
 that he has authority so to do, which he has not, but which he believes he 
 had, makes himself liable to every person who takes that bill. There is no 
 authority to support such a position. Would the defendant, if he had 
 acted under a power of attorney, purporting on the face of it to be 
 executed by Hancorne, but which turned out to be forged, have been 
 liable to any person who afterwards took the bill 1 If he be liable at all, 
 he must be so by some contract, or by reason of the custom of merchants. 
 Here there was no contract between the plaintiff and defendant, and tliere 
 was no proof of any custom of merchants which would make him liable. 
 But the second count will probably be relied upon. It alleges " that 
 Fox drew the biU directed to Hancorne, and requested the latter to pay 
 the sum mentioned in it ; that the defendant, well knowing the premises, 
 
 • 2 East, 410.
 
 SFX'T. Ill] POLHILI, V. WALTKR. 619 
 
 falsely (for the words fraudulently and deceitfully must, after the iinding 
 of the jury, be rejected) represented that he was authorised to accept the 
 bill by procuration of the drawee, and did accept it in Ixis name ; that the 
 bill was indorsed to the plaintifl'; tliat the drawee refused to pay it ; and 
 tliat it then became the duty of the defendant to pay it as the acceptor 
 thereof. The latter allegation is an allegation of matter of law, and the 
 duty must ai-ise, by law, from the facts previously stated in tlie count, 
 Jfax V. Roberts^, Rex v. Everett'. Then, is it by law the duty of a person 
 who accepts a bill in the name of another, believing tliat he has authority 
 from that other to do so, to pay that bill as the acceptor, in default of 
 payment by the other party % Here was no contract between the plaintiff 
 and defendant, upon which such a duty could be grounded ; and the 
 declaration does not allege that the defendant became liable as acceptor 
 by the custom of merchants, nor was there pi'oof of any such custom. By 
 the general custom of mercliants a person may accept in his own name for 
 the honour of the drawer or indorser ; but, in that case, the person so accept- 
 ing is not liable, unless the bill be first presented to the drawee when due. 
 Sir Jaines Scarlett and Lloyd contra. First, assuming that the 
 defendant was not guilty of fraud, in any sense of that word, lie was 
 liable, as acceptor, on the facts stated in the second count. That count, 
 even rejecting the allegation of fraud and deceit, contains a statement of a 
 cause of action. The law will imply a contract, by the person who 
 accepted the bill under the circumstances there stated, to pay it. The 
 defendant having accepted in the name and by the procuration of 
 Hancorue, must be considered to have undertaken to pay the bill if 
 Hancorne did not. If a person assumes to act as the agent of another, 
 and, in fact, has no authority, any contract which lie may have made, may 
 be treated as made by him personally. And the defendant accepting per 
 procuration, and knowing that he had no authority, must be taken to have 
 meant that the bill should be paid by somebody, either by tlie party in 
 whose name it was accepted or by liimself. Tliat is, in substance, the 
 acceptance of a bill of exchange. A case is mentioned in Roscoe on Bills 
 of Exchange, p. 383, n. 9, where, in the American Courts, a pretended 
 agent who signed a note for anotlier as having authority, was held 
 personally liable as maker. But, secondly, the first count of the declara- 
 tion was proved. The jury have, indeed, negatived fraud in fact; they 
 have found that the defendant thought Hancorne would pay the bill, and 
 that he did not mean to cheat any person ; but still there was in this case 
 that which constitutes fraud in law, for tlie defendant, by accepting a bill 
 per procuration of another, has rejiresented to all the world that he had 
 authority from that other to do so, whereas he had no such autliority. 
 That representation being false to his knowledge, is a fraud in law, Paslei/ 
 V. Freeman', Tapp v. Zee*, Ilaycraft v. Creasy^. In the late case of 
 
 1 12 East, 89. = 8 B. & C. 114. ■' 3 T. E. 51. 
 
 ■• 3 Bos. & Pull. 367. •'• 2 East, 92.
 
 620 POLHILL V. WALTER. [CHAP. V 
 
 Foster V. Charles', Tiiulal, C. J., says, " It is fraud in law if a party makes 
 representations wliieli he knows to be false, and injury ensues, although 
 the motives from whicli tlie representations proceeded may not have been 
 bad ; the party who makes such representations is responsible for the 
 consequences." Here, the false representation has misled the plaintiff; he 
 has a bill for wliich he lias given a valuable consideration, and wjiich has 
 not been paid. He is consequently damnified ; and he may recover against 
 the defendant. 
 
 Lord Tenterden, C. J., now delivered the judgment of the Court. 
 
 In this case, in which the defendant obtained a verdict on the trial 
 before me at the sittings after Hilary term, a I'ule nisi was obtained to 
 enter a verdict for the plaintiff, and cause was shewn during the last term. 
 The declaration contained two counts : the first stated, that a foreign bill 
 of exchange was drawn on a person of the name of Hancorne, and tliat the 
 defendant falsely, fraudulently, and deceitfully did represent and pretend 
 that he was duly authorised to accept the bill by the procuration, and on 
 behalf of Hancome, and did falsely and fraudulently pretend to accept tlie 
 same by the procuration of Hancorne. It then proceeded to allege several 
 indorsements of the bill, and that the plaintiff, relying on the pretended 
 acceptance, and believing that the defendant had authority from Hancorne 
 to accept, received the bill from the last indorsee in discharge of a debt ; 
 that the bill was dishonoured, and that the plaintiff brought an unsuccess- 
 ful action against Hancorne. The second count contained a similar state- 
 ment of the false representation by the defendant, and that he accepted 
 the bill in writing under pretence of the procuration from Hancome : and 
 then proceeded to describe the indorsements to the plaintiff, and the 
 dishonour of the bill, and alleged, that thereupon it became and was 
 the duty of the defendant to pay the bill as the acceptor thereof, but that 
 he had not done so. 
 
 On the trial it appeared, that when the bill was presented for ac- 
 ceptance by a person named Armtield, who was one of the payees of the bill, 
 Hancorne was absent ; and that the defendant, wlio lived in the same 
 house with him, was induced to write on the bill an acceptance as by the 
 procuration of Hancorne, Armfield assuring him that the bill was perfectly 
 regular, and the defendant fully believing that the acceptance would be 
 sanctioned, and the bill paid at maturity, by the drawee. It was after- 
 wards passed into the plaintiff''s hands, and being dishonoured when due, 
 an action was brought against Hancorne ; the defendant was called as 
 a witness on the trial of that action, and he negativing any authority from 
 Hancorne, the plaintiff was nonsuited. I left to the jury the question of 
 deceit and fraud in the defendant, as a question of fact on the evidence, 
 and the jury having negatived all fraud, the defendant had a verdict, 
 liberty being reserved to the plaintiff to move to enter a verdict, if the 
 Court should think the action maintainable notwthstanding that finding. 
 
 ' 7 Bingh. 105.
 
 SECT. Ill] POLHILL ('. WALTEU. G21 
 
 On the argument, two points were made by the phiintift''s counsel. It 
 was contended, in the lirst place, that although the defendant was not 
 guilty of any fraud or deceit, he might be made liable as acceptor of the 
 bill ; that the second count was applicable to that view of the case ; and 
 that, after rejecting the allegations of fraud and falsehood in that count, it 
 contained a sufficient statement of a cause of action against him, as 
 acceptor. But we are clearly of opinion that the defendant cannot be 
 made responsible in that character. It is enough to say that no one can 
 be liable as acceptor but the person to whom the bill is addressed, unless 
 he be an acceptor for honour, which the defendant certainly was not. 
 
 This distinguishes the present case from that of a pretended agent, 
 making a promissory note, (referred to in Mr. Roscoe's Digest of the Law 
 of Bills of Exchange, note 9, p. 47), or purchasing goods in the name of a 
 supposed principal. And, indeed, it may well be doubted if the defendant, 
 by writing this acceptance, entered into any contract or warranty at all, 
 that he had authority to do so ; and if he did, it would be an insuperable 
 objection to an action as on a contract by this plaintiff, that at all events 
 there was no contract with, or warranty to, him. 
 
 It was in the next place contended that the allegation of falsehood and 
 fraud in the first count was supported by the evidence ; and that, in order 
 to maintain this species of action, it is not necessary to prove that the 
 false representation was made from a corrupt motive of gain to the 
 defendant, or a wicked motive of injury to the plaintiff : it was said to be 
 enough if a representation is made which the party making it knows to be 
 untrue, and which is intended by him, or which, from the mode in which 
 it is made, is calculated, to induce another to act on the faith of it, in such 
 a way as that he may incur damage, and that damage is actually incurred. 
 A wilful falsehood of such a nature was contended to be, in the legal sense 
 of the word, a fraud ; and for this position was cited the case of Foster v. 
 Charles^, whicii was twice under the consideration of the Court of Common 
 Pleas, and to which may be added the recent case of Corbet v. Brown''. 
 The principle of these cases appears to us to be well founded, and to apply 
 to the present. 
 
 It is true that there the representation was made immediately to the 
 plaintiff', and was intended by the defendant to induce the plaintiff" to do the 
 act which caused him damage. Here, the representation is made to all to 
 whom the bill may be offered in the course of circulation, and is, in fact, 
 intended to be made to all, and the plaintiff is one of those ; and the 
 defendant must be taken to have intended, that all such persons should 
 give credit to the acceptance, and thereby act upon the faith of that repre- 
 sentation, because that, in the ordinary course of business, is its natural 
 and neces.sary result. 
 
 If, then, the defendant, when he wrote the acceptance, and, thereby, 
 in substance, represented that he had authority from the drawee to make 
 1 6 Bingh. 39G; 7 Bingh. lOf). - H Biiis)i. .33.
 
 622 SMITH V. REESE RIVER COMPANY. [ciIAP. V 
 
 it, knew that he liad no sucli autlioi'ity, (and upon the evidence there can 
 be no doubt that he did,) the representation was untrue to his knowledge, 
 and we think tliat an action will lie against him by the plaintiff for the 
 damage sustained in consequence. 
 
 If the defendant had had good reason to believe Ids representation to 
 be true, as, for instance, if he had acted upon a power of attorney which 
 he supposed to be genuine, but which was, in fact, a forgery, he would have 
 incurred no liability, for he would have made no statement which he knew 
 to be false : a case very different from the present, in which it is clear that 
 he stated what he knew to be untrue, though with no corrupt motive. 
 
 It is of the greatest importance in all transactions, that the truth 
 should be strictly adhered to. In the present case, the defendant no doubt 
 believed that the acceptance would be ratified, and the bill paid when due, 
 and if he had done no more than to make a statement of that belief, accord- 
 ing to the strict truth, by a memorandum appended to the bill, he would 
 have been blameless. But then the bill would never have circulated as an 
 accepted bill, and it was only in consequence of the false statement of the 
 defendant that he actually had authority to accept, that the bill gained its 
 credit, and the plaintiff sustained a loss. For these reasons we are of 
 opinion that the rule should be made absolute to enter a verdict for the 
 plaintiff. 
 
 Rule absolute. 
 
 SMITH V. REESE EIVER COMPANY. 
 
 In Chancery, April 20, 1866. 
 
 [Reported in Law Beports, 2 Equity Cases, 264.] 
 
 This was a motion to restrain the Reese River Silver Mining Company, 
 Limited, from commencing or prosecuting any action against the plaintiff 
 for the recovery of a call. 
 
 On the 5th of June, 1865, the plaintiff received a prospectus of the 
 Reese River Silver Mining Company, Limited, incorporated under the 
 Companies Act, 1862, with a capital of 100,000^. in 20,000 shares of 51. 
 each. The prospectus, after calling attention to the unbounded wealth of 
 Nevada as a great and recognised fact, and the marvellous purity of the 
 silver extracted from the chloride ores of the region, proceeded as 
 follows : — 
 
 "The property which this company has contracted for consists of about 
 fifty ^ acres of land, containing several very valuable claims, some of which 
 are m full operation, and making large daily returns. It is situated between 
 A>istin Laiidor City and Amador, close to the river, and within half a mile
 
 SECT. Ill] SMITH I'. HEKSE RIVER COMPANY. C23 
 
 of the already moutioned railroad. The success which has attended all the 
 local companies, as also private individuals, working the silver ores on all 
 •sides of these mines is verified by official documents; and the proprietor (who 
 has amassed a largo fortune during the last eighteen months by working a 
 few of the claims upon the property contracted to be transferred to this 
 company) has, to shew his confidence in the prosperity of the company, agi'eed 
 to receive the purchase-money in fully paid-up sliares onlj', and to deposit 
 these with the directors as a guarantee for the mines, imtil returns are made 
 enough to pay interest at the rate of 25 per cent, per annum, before which 
 his shares are not to participate in any dividend whatever." 
 
 The prospectus, after some further statements as to tlie unparalleled 
 richness of the silver lodes found in the Reese River district, the geniality 
 of the climate, the pastoral and agricultural resources, forests of timber, 
 and the like, stated that the articles of association and a map of the district 
 could be seen at the company's offices, where further information might be 
 obtained. 
 
 The memorandum and articles of association, botli dated the .5th of 
 June, 1865, stated the objects of the company thus : — 
 
 "To mine for the precious metals, and to reduce the same from their 
 matrix, quartz, and other gold and silver and copper-bearing rocks or earths, 
 and other minerals, for the j)urpose of gain; the acquisition by purchasing, 
 taking in exchange or on lease, or by mining sett or license, concession, grant 
 or otherwise, of any lands, mines, liuildings, easements, rights and privileges, 
 machinery, plant, and other eft'ects whatsoever, which the company from time 
 to time think proper to be acquired for any of their purposes; and the letting, 
 selling, exchanging, or mortgaging any of the landed and other property and 
 effects of the company; the mining and the granting of licenses for mining 
 in or over any lands which may be acquired by the company, and the leasing 
 of any such lands either for mining, building, agricultural, or other purposes, 
 and the erection thereon of mills, stamps, machinery, smelting-works, and all 
 such other works and buildings as may be advantageous to the company's 
 business or businesses ; and generally the carrying on the business of a mining, 
 smelting, and crushing company — the doing of all other things whatsoever which 
 the company from time to time may think conducive to the attainment of any 
 of those objects." 
 
 Powers were given to the directors to manage the business of the 
 company and (Clause 111) : — 
 
 "to adopt and carry into effect or rescind, upon terms or otherwise, any 
 contract whether already made or hereafter to be made, by or on behalf of the 
 company, as the directors may in their discretion deem expedient. A certain 
 agreement made between Mr Peter Aaris of the first part, and the subscribers 
 of the memorandum of association hereunto annexed, is hereby confirmed." 
 
 (Clause 112.) "The directors may in their absolute discretion take, adopt, 
 or prosecute any proceedings for the purpose of carrying into cfl'ect all or any 
 of the objects mentioned in the memorandum of association." 
 
 (Clause 113.) "The directors may from time to time piu-chase or acquire 
 the business and property, or any part of the business or property of any 
 company, partnership, or person carrying on any business included among the
 
 C24 SMITH V. REESE RIVER COMPANY. [f'HAP. V 
 
 olijccts for which the company is established, upon such terms as the directors 
 may think fit." 
 
 The agreement with Mv. Peter Aaris was a provisional contract for the 
 purclia.se of the mine referred to in the prospectus. 
 
 The bill alleged that on the faith of the statements contained in the 
 prospectus, the plaintiff applied for and obtained an allotment of 100 
 shares in the company, paying a sum of \00l. ; and on the 2nd of August, 
 1865, having paid a furtlier sum of 100/., he received a certificate of being 
 registered as the proprietor of the 100 shares. On the 30th of December, 
 1865, the plaintiff received notice of a call of II. per share, accompanied 
 by a copy of what was termed " a most satisfactory letter received this day 
 from our deputation at San Francisco on their return from the mines 
 at Reese River." 
 
 From this letter, and a subsequent report of a more formal character, it 
 appeared that the deputation, as they said they had confidently anticipated, 
 liad found on reaching the estate, after many dangers and difficulties, that 
 the property contracted to lie purchased was not only inferior to the 
 representations made, but actually worthless. They considered, however, 
 that this realisation of their worst expectations was matter for rejoicing, 
 and that they had been fully compensated by purchasing, upon the recom- 
 mendation of a New York engineer, " one of the best (if not the finest) 
 mines in the Reese River district, at the mere nominal price of 36,000 dollars 
 (7500/.)," — consisting (not of fifty acres, the dimensions of the property 
 alluded to in the prospectus, but) of " 1 200 feet of tlie great extension of 
 the famous Confidence mine ledge, the vein of which is the truest, largest, 
 and richest in the Reese River district." The letter and report contained 
 numerous statements as to the value and richness of the property 
 p.urchased by the deputation in substitution for that which had been 
 originally contracted for. 
 
 The plaintiff declined to pay the call of 11. per share (for the purpose 
 of meeting the expenses incurred by the deputation), on the ground that he 
 had taken his shares and paid 200/. entirely on the faitli that tlie statements 
 contained in the prospectus were correct and bona fide, and, in particular, 
 in the full assurance and belief that the statements with reference to the 
 property contracted for by the company were true and accurate, and were 
 within the knowledge of the directors. Proceedings to recover the amount 
 of the call having been threatened, the present bill was filed for the purpose 
 of having the plaintiff's name removed from the register of shareholders, 
 to obtain repayment of the 200/., and to restrain all proceedings for the 
 recovery of the call. 
 
 From the affidavit of the directors, filed in opposition to the motion, it 
 appeared that, early in 1865, one William Jones was introduced by a 
 Mr. Anderson to Mr. Aaris, a broker in the city, as the owner of very 
 valuable mining property in tlie State of Nevada, from which he had 
 amassed a large fortune. Jones stated that he wished to get rid of this
 
 SECT. Ill J SMITH ('. IlEKSl': RIVEU CO.\rPA.\r. (i2."> 
 
 property to save liimself the trouble of working it, and suggested to Aaris 
 that he should get up a company for purchasing and working it. Aaris 
 received all Jones' statements in good faith, and embodied them in the 
 prospectus of the company, which he succeeded in forming in June, 186.5. 
 
 The affida\4t went on to state that the directors, after allotting the 
 shares, considered it to be their duty to examine into the truth of Mr. 
 Jones' statements, and accordingly sent out Aaris and one of the directors 
 as a deputation to California to inspect and report upon the property. 
 The directors also stated that they, like Aaris, fully believed at the time 
 that the representation.s made by Jones were true. Aaris had made an 
 affidavit to the same effect, and the plaintiff had not cross-e.xamined either 
 him or the directors upon their affidavits. 
 
 Mr. Rolt, Q.C., and Mr. Eddis, in support of the motion,, cited Rawlins 
 v. W{ckham\ and were stopped. 
 
 Mr. Roxburgh and Mi-. Bttchannn, for the defendants, opposed the 
 motion, and contended that, under the very wide powers given by the 
 articles of association to which the plaintiff was, by the prospectus, 
 expressly referred, and of the contents of which he must be held to have 
 notice, the directors had full power to rescind any contract wliich turned 
 out to be valueless, and make others more beneficial to their shareholders. 
 The statement in the prospectus that the directors " have contracted," did 
 not imply the completed purchase, with the guarantee of an indefeasible 
 title, of this particular property, especially as the articles of association 
 pointed to mining operations generally, without restriction to this particu- 
 lar locality. The directors liad acted with perfect good faith, and in full 
 confidence in the representations made to them ; and the statement 
 contained in the prospectus was fully justified by the circumstances at the 
 time. Not content, however, to act upon these representations without 
 further inquiry, they had taken the trouble to send a deputation out 
 to Nevada, and at once communicated the result to their shareholders. 
 
 The plaintifi" must, at all events, lie ordered to bring the amount of the 
 call into Court, to abide the result of the suit. 
 
 [They referred to Briggs' Ca.ie'.] 
 
 Mr. Rolt, in reply : — 
 
 It was the clear duty of the directors before making these statements 
 in their prospectus to have satisfied themselves that they were true. The 
 plaintiff ought not to be put upon any terms as to bringing the amount into 
 Court. He has already had to pay 200^. for his shares, and if it should be 
 ultimately decided that he is liable to pay the call, he will have to pay 
 interest upon it. 
 
 Sir W. Page Wood, V.-C. :— 
 
 I entertain a strong opinion that the misrepresentations which were 
 made in the prospectus published by the company, have a material bearing 
 
 ' 3 De G. & .J. 304. ' I.:iw Ury. 1 Kq. 183. 
 
 F. 40
 
 C2G SMITH V. REESE RIVER COMPANY. [CHAP. V 
 
 upon tlie right of tlie company to retain the name of tlie plaintiff upon the 
 register of shareholders. 
 
 Passing over the first statement in the prospectus as to the wealth of 
 the state of Nevada, where the property was situate which the company 
 had contracted for, and as to the large daily returns and the official docu- 
 ments, all which statements may or may not be true, I find statements as 
 to the value of the particular property contracted for, and the large fortune 
 amassed by the proprietor. Were tlie directors of the company in a 
 position to make these statements on the faith of wliich persons have been 
 invited to subscribe the articles of association 1 
 
 Now all that the directors knew was that Anderson had introduced 
 Jones to Aaris, who signed a contract which embodied the statements 
 contained in the prospectus as to the mine. All this story in the prospec- 
 tus was an absolute falsehood. Singularly enough the directors, who 
 should have examined into the truth of the prospectus before putting 
 it forward on behalf of tiie company, suddenly awake to their duties when 
 they have caught their subscribers. They say that they considered it their 
 duty, as directors of the company, to send out a deputation to inspect the 
 property and inquire into its value before proceeding to work it. The 
 deputation send back a report wliich reads more like a novel tiiaii anything 
 in real life. They say that their anticipations regarding the property 
 belonging to Jones have been more than realized as it was found to be 
 almost valueless, but that this was a matter for rejoicing. Why for re- 
 joicing it is difficult to understand. It might have been so if they could tlius 
 have escaped a ruinous contract ; but tliis was not the case, as tlie contract 
 was not binding upon the company if the company declined to complete it. 
 The directors therefore have put forward statements concerning the 
 contract entered into which were wholly untrue, and which they had no 
 reasonable ground for believing to be true. It was urged on behalf of tlie 
 defendants that this company was formed not merely to carry out this 
 particular contract, but for tlie general purposes and objects stated in the 
 memorandum of association. I admit that the plaintitif must be taken to 
 have had full notice, and to be bound by the contents of the memorandum 
 and articles of association ; but the fact that the company had power 
 to work other mines is not sufficient to absolve them from the misrepresen- 
 tations contained in the prospectus as to this particular property. It is 
 true that the prospectus stated that furtlier information might be obtained 
 at the company's offices ; but this was not enough to put persons intending 
 to apply for shares upon inquiry whether statements put forward by the 
 directors were true or false. Looking at the character of the case, and 
 the fact that the plaintiff' has already paid 200^., I do not consider that he 
 ought to be required to pay the amount of the call into Court. There will 
 be an injunction in the terms of the notice of motion'. 
 
 ' On the 28th of May, 18C6, an order was made for winding up the Company, and 
 Mr. Smith's name was placed on the hst of contributories by the liquidator. He took
 
 SECT. Ill] WKIl! r. nVA.L. (127 
 
 out a summous to have his name removed from this list, but his application was 
 refused by the Master of the KoUs'. The Lords Justices, on appeal, reversed this 
 decision^, and ordered Mr. Smith's name to be removed from the list. The liquidator 
 appealed to the House of Lords, who affirmed the order of the Lords Justices'. " I 
 hardlj' think," said Lord Cairns, "it was gravely art;ued at the Bar that in this case 
 a fraud had not been committed against the respondent. When I say a 'fraud', I do 
 not enter into any question with regard to the imputation of what may be called fraud 
 in the more invidious sense against the directors. I think it may be quite possible, as 
 has been alleged, that they were ignorant of the untruth of the statements made in 
 their prospectus. But I apprehend it to be a rule of law, that if persons take upon 
 themselves to make assertions as to which they are ignorant whether they are true or 
 untrue, they must in a civil point of view, be held as responsible as if they had asserted 
 that which they knew to be untrue. Upon that part of the case, my Ijords, I apprehend 
 that there is no doubt." 
 
 ' 36 L. J. (Oh.) 385. = L. R. 2 Ch. Ap. 004. ' L. E. 4 H. L. G4. 
 
 WEIR V. BELL AND OTHERS. 
 In the Court of Appeal, May 18, 1878. 
 
 [Reported in Law Beportx, 3 Exchequer Divixinii, 238.] 
 
 Appeal from the judgment of tlie Exchequer Division in favour of the 
 defendant Bell'. 
 
 Action against six directors of a company incorporated under the 
 Companies Acts, 1862 and 1867, for damages sustained by the plaintiff, 
 who had become a purcliaser of debentures of the company, upon the faith 
 of certain statements in a prospectus issued by the authority of the 
 defendants, some of the statements being alleged to be false and fraudulent 
 to the knowledge of the defendants. The debentures had since become 
 worthless. 
 
 The facts and arguments are fuily noticed in the judgments of the 
 Court. 
 
 Feb. 26, 27 ; Mar. 2. Sir H. S. Gifanl, S.-G., A. Charles, Q.C. 
 ( W. Barber with them), for the plaintili'. 
 
 Digby Seymour, Q.C, and Lumley Smith, for tlie defendant Bell. In 
 addition to those mentioned in the Court below and in the judgments of 
 the Court of Appeal, the following cases were cited : Ifersey Bocks Trustees 
 V. Gibhs"; dictum of Lord Campbell, Wilde v. Gibson"; New Brunswick 
 and Canada Ry. Co. v. Connybeare'', opinions of Lord Westbury, at p. 725, 
 of Lord Cranworth at p. 740, and of Lord Chelmsford at p. 749 ; Natioiml 
 Exchange Co. v. Drew''; Davidson v. Tulloch"; Brady v. Tod\ 
 
 Cur. adv. vult. 
 
 1 L. B. 8 Ex. D. 32. » Law Rep, 1 H. L. '.lii. ' 1 H. L. C. at p. 615. 
 
 « 9 H. L. C. 711; 31 L. J. (Ch.) 297. ^ 2 Macq. at pp. 124, 126, 127. 
 
 • 3 Macq. 783. ' il C. B. (n.s.) .^02; 30 L. J. (C. P.) 223. 
 
 40— :2
 
 G28 WEIR IK BELL. [chap. V 
 
 May 18. The following judgments were delivered : — 
 
 Cotton, L. J. This is an appeal of the plaintiff from the decision of 
 the Excliequer Division directing judgment to be entered for the defendant 
 Bell. The action was brought against various directors of the Knightor, 
 Treverbyn, and Kesugga Haematite Iron Ore Mining Company, Limited, 
 including Mr. Bell, and by it the plaintiff sought to recover damages 
 which he alleges he sustained by reason of his being induced, by certain 
 fraudulent misstatements in a prospectus issued by the authority of the 
 defendants, to take from the company certain debentures. 
 
 On the 31st of October, 1873, Bell, who had for some time been a 
 shareholder, became a director of the company. At this time the directors 
 were desirous to raise money by the issue of debentures, and they had 
 been authorised so to do by a special meeting held on the 29th of Septem- 
 ber, 1873. 
 
 Mr. Bell attended a meeting of the board held on the 5th of November, 
 at which a resolution was passed authorising either the solicitor or 
 secretary to employ brokers to place the debentures. 
 
 Under this resolution, Messrs. Stewart &, Lambe were employed as 
 brokers to place the debentures, and they, acting without any express 
 directions from Bell, prepared and issued the prospectus complained of. It 
 set forth various statements as to tlie condition and prospects of the 
 company, which have been found to be false. There can be no doubt that 
 the plaintiff took his debentures on the faith of these statements. The 
 defendant Bell had before the meeting of the 5th of November seen a 
 report and balance sheet, the statements of which, especially a statement 
 in the report that the works had been suspended since the 1st of January, 
 1873, shewed the untruth of those representations in the prospectus, which 
 have been found to be false and fraudulent. The defendant Bell went 
 abroad shortly after the board meeting of the 5th of November, but he 
 returned to England before the debentures purchased by the plaintiff 
 were allotted to him, and was present at the meeting of the board at 
 which debentures, including those held by the plaintiff, were allotted. 
 The jury found that Mr. Bell was not guilty of any personal fraud, tliat 
 he derived no beneiit from the money raised by the debentures, and tliat 
 Messrs. Stewart & Lambe the brokers were his agents in respect of the 
 statements in the prospectus which, as I understand the finding, means 
 that the brokers had authority from Mr. Bell to issue a prospectus, but no 
 express authority to include therein the statements which are found to be 
 fraudulent. On these findings, the Exchequer Division held that Mr. 
 Bell was not liable to the plain tifi; and the question is whether that 
 judgment can be maintained. 
 
 It is urged on behalf of Mr. Bell that he never saw the prospectus in 
 question, that the brokers were servants of the company, and not of 
 himself or of the other directors, and that in the absence of any personal 
 knowledge on his part of the fi-audulent statements, though the company
 
 SECT. Ill] WEIR V. BELL. ti2!) 
 
 as the principal of tlic brokers iuii,'lit be made liable, he cannot be. Tlie 
 judgment of the Exchequer Division, so far as it refers to the case of Mr. 
 Bell, is very short. It states that the finding of the jury that the brokers 
 were his agents in making the statements, was contrary to the evidence, 
 and therefore directed judgment to be entered for Mr. Bell ; and they 
 apparently did so on the ground, considered at much length in the previous 
 part of their judgment, that the brokers were acting in the matter as 
 servants or agents of the company, and that the company as principals, 
 and not the directors, must be answerable for their misstatements. 1 
 cannot agree with this opinion. Even if the company could in an action 
 of deceit be held liable for the misstatements in the prospectus, on which I 
 express no opinion, it was part of the duty of the directors to issue the 
 debentures, and I am of opinion that the brokers in prej^aring and issuing 
 the prospectus must be considered as discharging for the directors part of 
 the duty confided to them by the resolution authorising the issue of the 
 debentures, that is, as acting for the directors in making the statements 
 contained in the prospectus. This was the finding of the jury, which in 
 my opinion was not either contrary to the evidence or without evidence to 
 support it. When we look at the prospectus, it does not purport to be the 
 prospectus of the brokers. It states that the directors were prepared to 
 receive applications for the debentures, and annexed to it is a form of 
 application addressed to the directors, and referring to the prospectus, and 
 the defendant Bell, together with the other directors, acted on this in 
 allotting the debentures. 
 
 The prospectus must, in my opinion, be considered as the statements 
 of the directors. It is true that Mr. Bell did not see the prospectus, but 
 in November, whilst he was abroad, he learnt from an advertisement in a 
 newspaper that a prospectus had been issued, and though that advertise- 
 ment does not contain the statements of the prospectus wliich have been 
 found to be fraudulent, it gives the summary of the prospectus, which in 
 my opinion ought to have put Mr. Bell on inquiry, knowing as he did the 
 actual state of the company, as to the contents of the prospectus. He 
 certainly knew that the debentures would be applied for in reliance on the 
 statements contained in the prospectus, and in my opinion it was under 
 the circumstances his duty to ascertain what those statements were. He 
 neglected this duty; had he looked at the prospectus he would have seen 
 that material statements were untrue. It is well established that in an 
 action of deceit a defendant may be liable not only if he has made state- 
 ments which he knows to be false, but if he has made statements which in 
 fact are untinie, recklessly; that is, without any reasonable grounds for 
 believing them to be true, oi' under circumstances which shew that he was 
 careless whether they were in fact true or false. On the same princij)le, 
 in my opinion, if a defendant has employed an agent to issue a prospectus 
 or other document on the statements of which persons are invited to 
 contract, he will be liable to those who act to their prejudice in reliance
 
 G30 
 
 WEIR V. BELL. [CHAP. V 
 
 on false statements made in this document, if he knew facts wliich shewed 
 the untruth of those statements, but was so careless as to the representa- 
 tions made by his agent as not to do, what in my opinion it was his duty 
 to do, viz., to look at tlie document issued by liis autliority. Tliis view is 
 supported' by Lord Chelmsford in moving the judgment of the House of 
 Lords in Peek v. Gurney\ as to the case of Mr. Barclay. 
 
 In my opinion, therefore, judgment in the action ought to have been 
 against Mr. Bell. 
 
 Bramwell L. J. I think that the judgment for the defendant Bell 
 should be affirmed. I think I clearly understand the findings of the jury, 
 and I a^ree with them. They acquit the defendant Bell of actual fraud, 
 that is to say, of knowledge of the contents of the prospectus combined 
 with knowledo-e of those facts that make it false ; but they say that he, as 
 one of the directors, having authorised the raising of money on debentures, 
 authorised its being done in the usual way ; that issuing prospectuses is 
 usual and so he authorised the issuing of prospectuses, and in that way of 
 the one actually issued. On these findings the question turns. There is 
 no motion for a new trial. Nor do I think there would be ground for one 
 if there was. That the defendant was acting bona fide cannot, I tliink, be 
 doubted. We must, therefore, act on the finding of the jury. The defen- 
 dant, then, is not actually guilty of tliis fraud. He did not commit it 
 himself, nor procure its commission knowingly. Had he done so he would 
 have been liable, whether as director, manager, printer of the prospectus, 
 or entire stranger to the company, and acting merely from mischievous 
 love of roguery. But this is not the case. 
 
 I am of opinion, with an exception I will presently advert to, that to 
 make a man liable for fraud, moral fraud must be proved against him. I 
 do not understand legal fraud. To my mind it has no more meaning than 
 legal heat or legal cold, legal light or legal shade. There never can be a 
 well-founded complaint of legal fraud, or of anything else, except where 
 some duty is shewn and correlative right, and some violation of that duty 
 and right. And when these exist it is much better that they should be 
 stated and acted on, than that recourse should be had to a plirase illogical 
 and unmeaning with the consequent uncertainty. I see no such right and 
 duty here, nor any ground for saying they exist. But it is said that tliey do, 
 that there is an exception, the one above referred to, to the rule that a man 
 is only liable for fraud when it is actual fraud, and tliat though not morally 
 fraudulent himself, he is in some cases liable for the fraud of his agent ; 
 and for this Baricich v. English Joint Stock Bank' and the cases following 
 them are cited. I am not going to say that case is not law. In the first 
 place, we are bound by it. In the next, it has been so much approved 
 and followed, that it has become part of the law, and, lastly, it is 
 undoubtedly a most useful and convenient rule that principals should be 
 I Law Eep. 6 H. L. at p. 392. - Law Kep. 2 Ex. 'ioO.
 
 SECT. Ill] WEIK V. HELL. Gol 
 
 responsible for damages occasioned by the fraud of tlieir a<;ents acting 
 within the scope of their authority, at least to the e.xtent of the gains of 
 the principal, especially now that so much of the world's business is carried 
 on by corporations. But, with all respect be it said, the reasoning in 
 Barwick v. English Joint Stock Bank' is not satisfactory. Willes, J., 
 says: On the question "whether a principal is answerable for the act of 
 his agent in the course of his master's business and for his master's benefit, 
 no sensible distinction can be drawn between the case of fraud and the 
 case of any other wrong." Now, with very great submission, there is a 
 very obvious distinction. Fraud is always wilful, and a master as a rule 
 is not liable for the wilful wrong of his servant. "The general rule,' 
 proceeds the learned judge, "is that the master is answerable for every 
 such wrong of the servant or agent as is committed in the course of the 
 service and for the master's benefit, though no express command or privity 
 of the master be proved. That principle is acted on every day in running 
 down cases." The illustration is unfortunate, for it is certain that there 
 is no such liability wliere the act of the servant is wilful. He then cites 
 Hu-bank v. Nutting', where the owner of a ship was held liable for a 
 tortious conversion by the captain of part of the cargo by selling it. Tliat 
 case, however, was expressly decided on the ground that the captain was 
 acting for the owner within the scope of his authority. A similar remark 
 applies to the next case cited. The principle that governs such cases as 
 these is not that the master is liable for the acts of his servant. It is the 
 liability of principal for the acts of his agent. For suppose the defendants 
 had not been a joint stock company but a private partnership, they would 
 (if the decision is right) have been liable ; and suppose the fraud had been 
 committed by one of the firm, surely the other paitners would have been 
 liable. It seems to me then that Barwick v. English Joint Stock Bank' 
 cannot be supported on the reasons given. It is also remarkable that the 
 counsel for the plaintiff' in that case, in his opening, referred to cases in 
 equity only in supporting his proposition. There is a suspicious air of 
 novelty in the decision. It is always prominently put forward in subse- 
 quent oases. But though doubting the reasoning on which it is founded 
 (if one may say so without presumption) I think it may be supported on 
 other grounds. It is important to put the case on its true ground. I 
 think that every person who authorises another to act for him in the 
 making of any contract, undertakes for the absence of fraud in that person 
 in the execution of the authority given, as much as he undertakes for its 
 absence in himself when he makes the contract. I retain the opinion I 
 expressed in Udell v. Atherton^, and mean what I say now to be consistent 
 with it. Has this defendant so undertaken for the absence of fraud in 
 tiiose who prepared and issued this prospectusl I think not. The company 
 lias. The company is subject to actions to recover the money paid to it or 
 to recover damages for the frauds in question. The defendant had 
 1 Law Eep. 2 Ex. 259. -' 7 C. B. 707. ^ 7 h. * N. 172; ?.0 L. J. (Ex.) 337.
 
 632 WEIR ('. BELL. [chap. V 
 
 undertaken notliing. Respondeat superior. Tlie defendant is not superior. 
 If lie is, he is eitlier joint principal with the company, which is impossible, 
 or he and the directors are one principal and the company a second 
 principal, which is equally impossible. 
 
 I need not say that I think none of the other cases founded on Barwick 
 V. English Joint Stock Bank' inconsistent with this; on the contrary, the 
 principle I have ventured to suggest would support them all. I wish to 
 add, that assuming Barwick v. English Joint Stock Bank' to be rightly 
 decided and on right principles, it does not for the reasons above given, 
 include the present case. I am of opinion that the judgment should be 
 affirmed. 
 
 CocKBURN, C. J. This is an appeal from a judgment of the Exchequer 
 Division, in an action brought by the plaintiff against several defendants, 
 and amongst them against Mr. Valentine Grame Bell, as directors of the 
 Knightor, Treverbyn, and Resugga Hsematite Iron Ore Mining Company, 
 Limited, to recover a sum of 700/. advanced by him to the said company 
 on debentures, on the ground that he had been led to advance the money 
 on the faith of statements contained in a prospectus issued by the authority 
 of the defendants, which statements were false and fraudulent. Judgment 
 having been given in the Exchequer Division in favour of the defendants, 
 this appeal is brought against that decision so far as it relates to the 
 defendant Bell alone ; but it is impossible to dispose of Bell's case without 
 referring to the facts and the law as affecting the defendants generally. 
 
 We must take it, on the findings of the juiy, that certain material 
 statements contained in the prospectus — such as the amount of capital 
 stated to have been subscribed — that the mine was in working order — 
 that its actual yield amounted to 1 60 tons per week from one shaft, to 
 which two other shafts were about to be added — that the property was 
 worth 30,000/., and could be sold at any time for that amount — that the 
 money proposed to be raised on debentures would be used in the develop- 
 ment of the property — were false ; as also that it was on the faith of 
 these statements that the plaintiff had been led to advance his money. 
 Under these circumstances there can be no doubt that the plaintiff would 
 be entitled to recover back his money from the company. The question 
 here is, 1st, whether he can recover it from the directors as having autho- 
 rised the issuing of the prospectus, although they were not cognisant of 
 the false statements contained in it; 2ndly, whether, independently of 
 this general ground, the defendants, and more especially the defendant 
 Bell, have by their individual conduct rendered themselves liable to the 
 plaintiff. 
 
 The facts are these. The company had been formed in 1872 ; but in 
 January, 1873, it was compelled to cease working from want of funds. 
 Between that time and the ensuing month of August, money was advanced 
 
 ' Law Eep. 2 Ex. 25y.
 
 SECT. Ill] WEIK V. 13ELI,. 633 
 
 by the defendants (with the exception of the defendant Bell), then bein" 
 directors of the company, and ore but to a small extent only was raised. 
 At the annual general meeting of the company held on the 29th of 
 September, 1873, the directors were authorised to raise money on deben- 
 tures ; and at a subsequent meeting of the directors held on the 8th of 
 October, it was agreed that the defendants, Baldwin and Furnival, should 
 make further advances for taking up certain bills, and that the repayment 
 of these, and of the former advances made by defendants, should be made 
 out of the proceeds of the debentures to be issued. At a meeting of the 
 directors of the 5th of November, it was resolved that " the secretary be 
 authorised to employ brokers to place debentures to produce 10,000^., at a 
 discount of 5 per cent., and a commission not exceeding 1 per cent.;" and 
 acting on this authority the secretary employed Stewart & Lambe, who 
 are brokers, to place the debentures ; and they, without express authority, 
 but as it seems in the ordinary course of business adopted on such 
 
 occasions, published the prospectus, which was prepared by their clerk 
 
 on what instructions or information does not appear — and which contained 
 the misrepresentations complained of. The money raised on the deben- 
 tures was paid into the company's bankers, and part of it was applied to 
 the repayment of the advances which had l)een made by the defendants 
 with the exception of Bell. In the sequel the company was unable to go 
 on, and in January, 1875, was wound up. 
 
 Upon these facts the Court of Exchequer Division gave judgment in 
 favour of the defendants, on the ground that Stewart &, Lambe, the 
 brokers, in issuing the prospectus, liad acted as the agents, not of the 
 defendants, but of the company ; that the directors had been merely the 
 officers and agents of the company in carrying into effect tlie resolution of 
 the company that debentures should be issued ; and in doing what was 
 necessary for that purpose, inter alia in directing that a prospectus should 
 be prepared and published, had been in no sense principals : consequently 
 that the rule, that a principal who derives benetit from a fraud committed 
 by his agent in the course of his employment becomes liable to a jjarty 
 injured by the fraud, has here no application, though upon the authority 
 of Barvnck v. Englisli Joint Stock Bank^, the fraud in question would have 
 made the company liable, had the action been brought against them. 
 
 I concur in the view that the defendants, in what they did, were 
 acting as the agents of the company, and not as principals, and therefore 
 that they would not be liable, generally speaking, for misrepresentations 
 made without their authority by persons employed by them on behalf of 
 the company, and who in such employment were acting, not as their 
 agents, but as the agents of the company. But the Court below appear to 
 have overlooked a circumstance, which, as it seems to me, makes all the 
 difference — namely, that, with the exception of the defendant Bell, all the 
 defendants, though not parties to the issuing of the prospectus as 
 
 I Law Ikji. 2 Ex. 2.5'J.
 
 634 WEIH V. BELL. [CHAf. V 
 
 fraudulently frnnietl, yet knowing that it had been issued, and with the 
 knowlod"e of its fraudulent cliaracter, which their perfect acquaintance 
 -with the affairs of the company must have given them, not only allowed 
 the plaintiff and others to advance their money on the faith of the false 
 representations contained in it, and by receiving the money became parties 
 to the fraud, but, on their own authority, applied a considerable portion 
 of the money so received to the discharge of their own pecuniary claims 
 on the company, claims which the company had no other means whatever 
 of satisfying. Even the defendant Barnett, who left England in August, 
 1873, and did not return till 1874, and wiio was ignorant of all that was 
 done in the interval, inclusive even of the fact of the payment of the 
 amount due to him from the company, the money having been paid to his 
 agents in his absence, having retained the money when the facts came to 
 his knowledge, stands on the same footing with the rest. 
 
 Now I take it to be undoubted law that, if an agent in the course of 
 his employment commits a fraud upon another party, whereby damage 
 ensues to the latter, he will be liable to the party wronged, though his 
 principal would be so likewise. The case of Henderson v. Lacon' proceeded 
 on this principle. And in Cullen v. Thompson's Tnistees' Lord Westbury 
 says, "All persons concerned in the commission of a fraud are to be 
 treated as principals ; no party can be permitted to excuse himself on the 
 ground that he acted as the agent or servant of another." A fortiori, this 
 would be so where the agent himself derives benefit from the fraud. 
 
 The present case differs, it is true, in this, that here the defendants, 
 being the agents of the company, employed sub-agents to publish the 
 prospectus, but were no parties to the fraudulent statements contained in 
 it, such statements having been published by the sub-agents without their 
 authority or knowledge. But having, with the exception of the defendant 
 Bell, become aware of tliose statements, and being also aware of their 
 falsehood, they were parties to the issuing of the debentures, and applied 
 a considerable portion of the proceeds to the satisfaction of their own 
 claims on the company. 
 
 Now I apprehend that where an agent employs a sub-agent, and the 
 latter, in the course of his employment, is guilty of fraud or misrepresenta- 
 tion, and the agent, with knowledge of tiie fraud, derives a material 
 benefit from it, the case becomes analogous to that of a principal who 
 profits by the fraud of his agent, the principle being that he who profits 
 by the fraud of one who is acting by his authority, though committed 
 without his authority, adopts the act of the agent, and becomes responsible 
 to the party who has been imposed upon and has sustained damage by 
 reason of it. 
 
 If, therefore, the case of the defendant Bell, with winch alone we have 
 to deal — as it is only against the decision of the Court below in his favour 
 that the present appeal has been brought — had been undistinguishalile 
 1 Law Eep. 5 Eq. 249. 'J i Macq. i24.
 
 SECT. Ill] WEIU r. UEIJ,. (;;3.') 
 
 from that of tlie other defendants, I sliould not liave felt warranted in 
 affirming the decision. But his case differs from that of the other defen- 
 dants in two most important particulars. First, that though party to the 
 receipt of the plaintitt"s mone_y, he does not appear to have been at that 
 time acquainted with the real state of the company's affairs, and thus 
 aware of the falsehood of the statements contained in tlie prospectus ; 
 secondly, that none of the money actually came into his pocket. 
 
 It appears that Mr. Bell became a shareholder in the company at the 
 in.stigation of the defendant Barnett in June, 1872, under a belief that 
 the concern would be a successful one. He took 100 shares, and paid 
 1000^. He attended the general meeting on the 29th of September, 1873, 
 at which it was resolved to laise money on debentures, and on the 31st 
 of October he became a director of the company. He was no party to the 
 arrangement of the 8th of October, at which it was resolved to repay the 
 advances made by the directors out of the money to be raised by the issue 
 of debentures. He was present, as director, at the meeting of the 5th of 
 November, at which the secretary was authorised to employ brokers to 
 place the shares ; and, as it appears that in the ordinary course of business 
 it would be incidental to sucli employment that the brokers should issue a 
 prospectus, the jury may have been warranted in finding that by joining 
 in that resolution he constituted the brokers his agent.s to issue a prospectus. 
 But of the prospectus as published he knew nothing till some time after 
 its publication. He left London for the Continent on the evening of the 
 6th of November, and did not return till the 25th, the prospectus having 
 been issued, without his knowledge, in the interval. He was no partj', 
 directly or indirectly, to the statements contained in it. He, of course, 
 became aware of the prospectus afterwards, and knowing the statements 
 contained in it, was a party to the receipt of the plaintilf's money on the 
 26th of November. But it does not appear that he was then aware of the 
 real state of the company's affairs. He swore on the trial that he had no 
 such knowledge beyond what was afforded by the reports of the company's 
 engineer produced at the meeting of the 29tli of September — reports 
 which did not disclose tlie true state of affairs — and that when he became 
 aware of the statements put forth in the prospectus he had no reason to 
 believe them to be untrue ; and there was no evidence to rebut his state- 
 ment. I cannot, therefore, say that he was guilty of fraud in receiving 
 the plaintiff's money on behalf of the company ; and, as has been already 
 stated, he derived personally no benefit from the receipt of it. 
 
 In the result Bell has been guilty of no fraud ; he is not a principal 
 deriving a benefit from a fraud committed by his agent procuring that 
 Ijcnefit ; nor, indeed, has he derived any benefit from the fraud committed 
 by the sub-agents whom he was authorised to employ on behalf of the 
 company. Upon this state of facts I think the plaintiff fails to e.stablish 
 the liability of the defendant Bell. AVhile, therefore, I am unabie to 
 adopt the grounds on wliich the judgment of the Exchequer Division is
 
 (;;3C) I.ANGUIDGE V. LEW. [CHAP. V 
 
 based, I am of opinion that, on tlie special grounds to which I liave 
 referred, that judgment in the case of the defendant Bell should be upheld 
 and this appeal dismissed. 
 
 My Brother Brett concurs in this judgment. 
 
 Judgment affirmed. 
 
 LANGRIDGE v. LEVY. 
 In the Exchequer, Easter Term, 1837. 
 
 [Reported in 2 Meeson d- Wehby, 519.] 
 
 Case. The declaration stated, that whereas one George Langridge, the 
 fatlier of tlie plaintiff, on the 1st of June, 1833, at the request of the 
 defendant, bargained with him to buy of him a certain gun, to wit, for the 
 use of himself and his sons, at and for a certain price, to wit, the sum of 
 2il., and the defendant then, by falsely and fraudulently warranting the 
 said gun to have been made by Nock, and to be a good, safe, and secure 
 gun, then sold the said gun to the said George Langridge, for the use 
 of himself and his sons, for the said sum of 24/. then paid by the said 
 George Langridge to the defendant for the same : whereas in truth and in 
 fact the defendant was guilty of great breacli of duty, and of wilful deceit, 
 negligence, and improper conduct, in this, that the said gun, at the time of 
 the said warranty and sale, was not made by Nock, nor was it a good, safe, 
 and secure gun, but, on the contrary thereof, was made and constructed by 
 a maker very inferior as a gun-maker to Nock, and was then and at all 
 times a very bad, unsafe, ill-manufactured, and dangerous gun, and wholly 
 unsound and of very inferior materials ; of all which premises the defend- 
 ant, at the time of the making of the said warranty, and of the said sale, 
 had full knowledge and notice. And the plaintiff in fact saj's, that he, 
 knowin'g and confiding in the said warranty, did use and employ tlie 
 said gun, whicli but for the said warranty he would not liave done : and 
 that afterwards, to wit, on the 10th December, 1835, the said gun being 
 then in the hands and use of the plaintifl', by reason and wholly in conse- 
 quence of the weak, dangerous, and insufficient and unworkmanlike manu- 
 facture, construction, and materials thereof, then and whilst tlie said gun 
 was so in use by the plaintiff, burst and exploded, became shattered, and 
 went to pieces ; whereby and by reason whereof, the plaintiff was greatly 
 cut, wounded, maimed, ifec. ifcc, and wholly by means of the premises, 
 breach of duty, and improper conduct of the defendant, lost, and is 
 for ever deprived of the use of his hand, &.c. &c. 
 
 Pleas, first, not guilty ; secondly, that the defendant did not warrant 
 the said gun to be made by Nock, and to be a good, safe, and secure gun, in 
 manner and form, ic; thirdly, that the gun was not a bad, unsafe, ill- 
 manufactured, and dangerous gun, and wholly unsound, and of very
 
 SECT. Ill] I.ANGRIDGE V. LEVY. V)',\7 
 
 inferior materials, as in the declaration alleged ; fourthly, that the gun 
 did not by reason and wholly in con.sequence of the weak, dangerous, 
 and insufficient and unworkmanlike manufacture, construction, and 
 materials thereof, burst, &c., as in the declaration alleged : — on all which 
 issues were joined. 
 
 At the trial before Alderson, B., at the Somersetshire Summer Assizes, 
 1836, it appeared that in June, 1833, the plaintiff's father saw in the shop 
 of the defendant, a gun-maker in Bristol, a double-barrelled gun, to wliich 
 was attached a ticket in these terms : — " Warranted, thi.s elegant twist 
 gun, by Nock, with case complete, made for his late Majesty George IV. ; 
 cost 60 guineas : only 25 guineas." He went into the shop, and saw the 
 defendant, and examined the gun. The defendant (according to Langridge's 
 statement) said he would warrant the gun to have been made by Nock for 
 King George IV., and that he could produce Nock's invoice. Langridge 
 told the defendant he wanted the gun for the use of himself and his sons, 
 and desired him to send it to his house at Knowle, about two miles from 
 Bristol, that they might see it tried. On the next day, accordingly, the 
 defendant sent the gun to Langridge's house by his shopman, who also on 
 that occasion warranted it to be made by Nock, and charged and fired it 
 off several times. Langridge ultimately bought it of him for 2il., and 
 paid the price down. Langridge the father and his three sons used the 
 gun occasionally ; and in the month of December following, the plaintiff", 
 his second son, having taken the gun into a field near his father's house to 
 shoot some birds, putting in an ordinary charge, on firing off the second 
 barrel, it exploded, and mutilated his left hand so severely as to render it 
 necessary that it should be amputated. There was conflicting evidence as 
 to the fact of the gun's being an insecure one, or of inferior workmanship. 
 Mr. Nock, however, proved that it was not manufactured by him. The 
 defendant also denied that any warranty had been given. The learned 
 Judge left it to the jury to say, first, whether the defendant had warranted 
 the gun to be made by Nock, and to be a safe and secure one ; secondlv, 
 whether it was in fact unsafe or of inferior materials or workmanship, and 
 exploded in consequence of being so ; and thirdly, whetiier the defendant 
 warranted it to be a safe gun, knowing that it was not so. The jury 
 found a general verdict for the plaintiff, damages 400^. 
 
 In Michaelmas Term, Erie moved in pursuance of leave reserved by 
 the learned Judge, and obtained a rule nisi for a nonsuit, on the ground 
 that no duty could result out of a mere private contract, the defendant 
 being clothed with no official or professional character out of which a 
 known duty could arise ; and that the injury did not arise so immediately 
 from the defendant's act as that it could form the subject of an action on 
 the case by the plaintiff', between whom and the defendant there was 
 no privity of contract. lu Hilary Term, 
 
 Mompas, Serjt., and Ball shewed cause. This declaration discloses a 
 sufficient cause for action against the defendant. The object of the action
 
 G38 LANGRIDGE V. LEVY. [CHAP. V 
 
 on tlie case, given by the Statute of Westminster, was to meet every case 
 of individual and particular wrong as it might arise, on the well-known 
 principle that, if any subject sustained a wrong by the unjustifiable act of 
 another, he ought to have a remedy. It is no objection, therefore, that 
 this particular action may not have been brought. Nor is it material, 
 after verdict, that the declaration may be informally drawn, if on tlie face 
 of it a sufficient cause of action be disclosed. Although the contract is set 
 out in tlie declaration, the action is not brought upon tiiat contract, on 
 which undoubtedly the son could not sue. But the action on the case is 
 peculiarly applicable to cases where the party cannot sue on the contract, 
 Imt where out of the breach of it a wrong has resulted to the plaintiff'. 
 The statement of the contract is merely introductory ; it is however thus 
 far important, that it shews the defendant had notice tliat Langridge the 
 father bought the gun for the use of his sons : and it alleged also, that th.e 
 plaintiff knew of and confided in tlie warranty. In Chapman v. Pickeryt- 
 gill', where it was first lield that case lay for maliciously suing out a 
 commission of bankruptcy which was afterwards superseded, Wilmot, C. J., 
 says — "It is said this action was never brought, and so it was said iu 
 Ashby V. White ; I wish never to hear this objection again. This action is 
 for a tort ; torts are infinitely various, not limited or confined, for there is 
 nothing in nature but may be an instrument of mischief." Here it is clear 
 that if the plaintiff cannot sue for this injury, no other person can, and 
 there is a wrong without a remedy. But the principle on which it is 
 contended that this action may be supported, is, that wherever by tlie 
 circumstances of the transaction a duty is imposed upon the defendant, 
 and by a breach of that duty (as distinguished from a contract) an injury 
 liappens to the plaintiff, lie may sue. This duty may either arise out of a 
 contract, or it may be imposed by law : and the present case may be 
 rested on both tliese grounds. It should be observed, that it does not 
 follow tliat because a contract exists, an action of tort may not be 
 maintained even by the party to the contract. Thus, in Mast v. Goodson ^, 
 a count on an agreement in writing, that the plaintifi" should build a yard 
 in the defendant's close, and lay out 20/. upon it, and that the plaintiff 
 should enjoy it for his life, averred that the plaintiff did build the yard, 
 etc , and enjoyed the same for some years as an easement, and assigned for 
 breach that the defendant wrongfully and injuriously obstructed him in 
 the enjoyment of such easement : and this was held to be a good count in 
 tort, and well joined with a count in trover. There the plaintiflT might 
 have sued directly on the contract ; yet he was held entitled to sue in tort 
 for a breach of the duty arising out of it. In Everard v. Hopkins^, the 
 declaration stated, that the defendant being a common chirurgeon, had 
 undertaken the cure of the plaiiitifl"s servant, being hurt with a cart 
 wheel, and tliat by agreement between them, he was to liave five marks 
 for the .said cure ; and alleged that he was not only careless of the cure, 
 ' 2 Wils. 1-ir,. "- 3 Wils. 348. ■' 2 Bulst. 332.
 
 SECT. Ill] LAXGRIDGE V. LKVV. G.'il) 
 
 but applied unwholesome medicines, itc, whereby the phiintift' lost the 
 service of his servant for a year : it was held, on demurrer, that this count 
 was good ; and it was also said, that the servant, though he could not sue 
 upon the agreement, might have an action upon the case for tiie applying 
 of unwholesome medicines to him. So, in an action on the case by a man 
 and his wife against a surgeon for an injury to the wife by reason of the 
 defendant's improper and unskilful treatment, it was held sufficient to 
 state in the declaration that the defendant was retained as a surgeon for 
 reward, and entered on the cure, witiiout alleging by whom he was 
 retained, or was to be paid : Pippin and Wife v. ShepjmrdK Eichards, 
 C. B., there says : " From the necessity of the thing, the only person wlio 
 can properly sustain an action for damages for an injury done to the 
 person of tlie patient, is the patient himself, for damages could not be 
 given on that account to any other person, although the sui'geon may liave 
 been retained and employed by him to undertake the cure. The party 
 employing the surgeon can have nothing to do with this action." So here, 
 tlie father could recover only for the breach of the contract, and nothing 
 for tiie injury to his son, except so far as he might be able to shew a loss 
 of his services. In Vin. Abr., Actions, (Case, Disceit), O. b, 2, this case is 
 put, which is also referred to in Everard v. Hopkins: "If I deliver my 
 horse to a smith to shoe, and he deliver him to another smith, who pricks 
 him, I may have action upon the case against him, tliough I did not 
 deliver the horse to him :" citing 12 E. 4, 13 a, pi. 9. Another case there 
 stated is, where a party delivers goods to A., who delivers them to B. to 
 keep for his use, and B. wastes them ; the owner may have an action on 
 the case against B., though he did not deliver them to him. In these 
 cases the only contract was with the original bailee ; yet an action on the 
 case was held maintainable against the second. 
 
 But, in the second place, a duty was imposed by law on the defendant, 
 not knowingly to sell an article calculated to do injury. Where a party 
 undertakes to furnish that which by his misconduct may become dangerous 
 to another, he is bound in law to take reasonable care that it is so supplied 
 as not to be injurious. The law imposes such a duty, though there may be 
 no contract at all. It is analogous to the liability of a party who puts 
 dangerous animals, knowing their disposition, into a place where they are 
 likely to do injury ; Dixon v. BeW. He who carelessly or wrongfully 
 exposes anotlier to danger by fire arms is in a like predicament. Suppose 
 there were no contract in this case, and it appeared that the defendant liad 
 put the gun into the plaintiff's hand to fire it off, knowing it to be unsafe; 
 can it be said that he would not be liable if any injury resulted] If 
 a party sold a vicious dog under a representation that he was a quiet one, 
 and being taken home by the buyer, he bit his child ; would not 
 the seller be liable for this injury 1 The law imposes on all persons 
 who deal in dangerous commodities or instruments, an obligation that 
 ' 11 Price, 400. * a M. ct Sol. 198.
 
 C40 LANGRIDGE I'. LKVY. [CHAP. V 
 
 they should use reasonable care, much more that they should not 
 supply them knowing them to be likely to cause injury. [Pakke, B., 
 referred to Williams v. East India Company^. Alderson, B. There are 
 many cases which establish that the act of an unconscious agent is the act 
 of the party who sets him in motion. If your declaration had averred 
 that the father was an unconscious agent in the transaction, that is, that 
 he believed the gun to be safe, it would have brought you within that 
 principle.] It is averred that it was delivered to the father, for the use of 
 the sons, on an undertaking from the defendant that it was a safe one ; as 
 ao-ainst him, therefore, it is not necessary to shew that the father believed 
 it to be so ; at all events, after verdict, the allegation is sufficient. Suppose 
 A. sells oxalic acid as Epsom salts ; B., discovering the error, puts it back, 
 and goes to inform A. of it ; in the mean time C. takes it ; would B.'s 
 knowledge aflect C.'s right of action against AA [Alderson, B. It is 
 averred that the injury arosse wholly by the breach of duty of the defend- 
 ant ; that negatives the inference that it was in any degree by breach of 
 duty in the father.] The onus is on the defendant to shew that the 
 plaiutifi' is not entitled to recover : prima facie, every man who suffers an 
 injury is entitled to recover against the party who caused it, and who must 
 he taken to have intended the natural consequences of his injurious act. 
 
 Erie and Butt, contra. There is no such known right in the English 
 law as is contended for on the other side, whereby the plaintifl" is entitled 
 to receive damages from the defendant, with whom he made no contract. 
 The allegation, that the gun was delivered for the use of the sons, is not a 
 direct and traversable allegation ; it is laid under a videlicet, and is wholly 
 immaterial. If the contract had been denied, it would have been suf- 
 ficient to prove a contract in fact, without proving the statement that the 
 gun was bought for the sons' use. The introduction of that allegation, 
 therefore, cannot aflect the defendant's legal liability. At all events, the 
 declaration should have shewn that it was bought for the use of tlie sons in 
 some lawful and necessary employment, — as in the service of the father, — 
 and so used ; as it stands, it must be taken that the plaintifl" used it merely 
 for his amusement, and without tlie fatlier's authority. It is consistent 
 witli all that is stated, that the plaintiff", liaviug heard of the warranty, 
 and having become aware of the unsafe state of the gun, may have taken 
 it from its place of custody, and of his own act loaded and fired it ofl", 
 when it exploded. All these presumptions ought to have been excluded, 
 in order to give the plaintiff" a right of action. The special damage can 
 give no cause of action, if no breach of duty be shewn down to that point. 
 The plaintiff" must shew a breach of a public duty, or a violation of a 
 private right existing between liimself and the defendant, — and then 
 follows the damage, which completes the cause of action ; but the damage 
 cannot be prayed in aid to support tlie previous part of the case : and here 
 it is in the statement of the special damage that it is said the injury was 
 
 ' 3 East. 192.
 
 SECT. Ul] LANliRlDGE V. LKVY. G41 
 
 i-iiiis(xl l)y the l)reacli of duty and inipropor conduct of tlu^ difendant. No 
 douht, whenever an instrument is innnediately dangerous, and is so phiccd 
 as to he likely to do an injury to any of the public, the party who places it 
 there is liable for such injury. But here, for aught that appears, the gun 
 was deli\ered to the father unloaded. And the contract of warranty raises 
 no foundation of puljlic duty : it is a mere repi'escntation at th(^ time ; 
 and there is no autiiority that it was in breach of any public duty, or could 
 have subjected the defendant to any public proceeding. In all the cases 
 referred to on the other side, it was alleged as a fact, and is noticed by the 
 Court, that the instrument was at the time actually dangerous. So also, in the 
 cases relating to the setting of loaded spring guns, or other weapons directly 
 dangerous. Holt v. Wilkes\ Bird \. Uolbrook', Tow7isend \. Wathen". So, 
 ferocious animals are immediately and necessarily dangerous. But there 
 are other cases which may be put, more in analogy with the piesent. 
 Suppose a chain cable were sold with a warranty of its being secure, when 
 in fact it was imperfect, and the vessel being in a storm, the cable is let 
 go, and breaks ; could it be contended that the captain and each of the 
 crew, if injured in consequence, would have a right of action against the 
 seller? So, supposing the owner of an unruly horse, knowing his dis- 
 position, sold him with a warranty that he was quiet to drive, and the 
 buyer lent him to a friend, who put other persons into the carriage, and he 
 ran away, and overturned and injured them ; would the seller be liable to 
 each of these persons 1 Such liabilities would be carried to an extent wholly 
 indefinite. The distinction is this : is the instrument or other thing 
 immediately dangerous or mischievous by the act of the defendant, or is it 
 such as may become so by some further act to be done to it 1 Thus, in tiie 
 well known case of Scott v. Shepherd*, the squib was immediately dangerous, 
 and the injury done by it furnished a right of action. So there is a known 
 head of actions for negligence "in keeping his fire;" Com. Dig. Action 
 upon the case of negligence, (A. 6) ; because tire is a known immediate 
 cause of mischief. The nearest case to the present is that of Witle v. 
 Hague''. There, A., an engineer, having been employed by B. to erect a 
 steam boiler and other apparatus on premises adjoining to the manufactory 
 of C, and C.'s property having been injured in consequence of the explo- 
 sion of the boiler by reason of the insufficiency of the materials of wliich it 
 was composed ; and it being found as a fact by the jury that A. was 
 personally present, and that his servants had the management of the 
 apparatus, at the time of the accident, it was held that C. might maintain 
 an action on the case against A. for the injury ; but the Court intimated 
 an opinion, that if the jury had negatived the fact of A.'s management of 
 the apparatus, though the accident arose from the imperfection of the 
 materials, he would not have been primarily liable. The general principle 
 is, that the damage must be a proximate consequence from the act of the 
 
 ' 3 B. & Aid. 308. - i Bing. 628; 1 Moo. & P. 007. " 9 East, 277. 
 
 J 3 Wils. 403. = 2 Dowl. & Kyi. 33. 
 
 F. 41
 
 G42 LANGRIDGE V. LEVY. [CHAP. V 
 
 flcfpiulant : — liere no pri\ity is shewn between tlie defendant and the 
 plaintifl', and tlie gun is made to produce the damage by the spontaneous 
 and unauthorised act of the plaintiff. [Parke, B. The question is, 
 whetlier a person to wliom the representation of the defendant is indirectly 
 made, may not also bring an action. Suppose it be made to the one 
 in order to be communicated to the other?] Then it ought to be so 
 averred. [Pahke, B. May not that be collected from the allegations in 
 this declaration?] There is no statement that the representation was 
 made by the defendant to the plaintifl', or that it was conveyed to him by 
 his father, or that the father was an intermediate agent for the purpose of 
 conveying it. If the defendant had authorised the father to make the 
 representation to tlie plaintifl", it might and ought to have been averred 
 that the defendant so represented to the plaintifl" : but all that is alleged is, 
 tliat the father, at the time of the sale, told the defendant it was for 
 the use of himself and his sons. It is just the same as the case of the 
 purchaser of a horso for himself and his friends, or of a stage coacli for the 
 use of the proprietors and all the passengers. In the cases cited on the 
 other side, of Everard v. Hopkins, and Pippin v. Shephard, there was 
 a direct act of misfeasance done by the defendant to the plaintifl". So, in 
 Williams v. East India Company, the action was between the parties to 
 the contract. Scott v. Lara\ Ward v. Weeks', Vica7-s v. Wilcocks', are 
 authorities to shew that, in order to support an action for a false represen- 
 tation, the injury must be the natural and legal consequence of the false 
 statement of the defendant. 
 
 Cur. adv. vult. 
 
 In the present term, the judgment of the Court was delivered by 
 
 Parke, B. In this case a motion was made to arrest the judgment, 
 after a verdict for the plaintifl". [His Lordship stated the declaration, and 
 proceeded] : — It is clear tliat this action cannot be supported upon the 
 warranty as a contract, for there is no privity in that respect between the 
 plaintifl" and the defendant. The father was the contracting party with 
 the defendant, and can alone sue upon that contract for the breach of it. 
 
 The question then is, whether enough is stated on this record to entitle 
 the plaintifl" to sue, though not on the contract ; and we are of opinion that 
 there is, and that the present action may be supported. 
 
 We are not prepared to rest the case upon one of the grounds on which 
 the learned counsel for the plaintifl" sought to support his right of action, 
 namely, that wherever a duty is imposed on a person by contract or other- 
 wise, and that duty is violated, any one who is injured by the \'iolation of 
 it may have a remedy against the wrong-doer : we tliink this action may 
 be supported without laying down a principle whicli would lead to that 
 indefinite extent of liability, so strongly put in the course of the argument 
 on the part of the defendant; and we should pause before we made a 
 
 ' Peake^s N. P. C. 296. •' 7 Bingh. 211. ^ g East, 1.
 
 SECT. Ill] LANOIUDGE V. LEVY. 643 
 
 precedent by our decision wliicli would be an autliority for an .action 
 against the vendors, even of such instruments and articles as are dangerous 
 in themselves, at the suit of any person whomsoever into whose hands they 
 might happen to pass, and who should be injured thereby. We do not 
 feel it necessary to go to that length, and our judgment proceeds upon 
 anotlier ground. If tlie instrument in question, which is not of itself 
 dangerous, but whicli requires an act to be done, that is, to be loaded, in 
 order to make it so, had been simply delivered by the defendant, without 
 any contract or representation on his part, to the plaintiff, no action would 
 have been maintainable for any subsequent damage which the plaintiff 
 might have sustained by the use of it. But if it had been delivered by the 
 defendant to the plaintiff, for the purpose of being so used by him, with an 
 accompanying representation to him that he might safely so use it, and 
 that representation had been false to the defendant's knowledge, and the 
 plaintiff had acted upon the faith of its being true, and had received 
 damage thereby, then there is no question but that an action would have 
 lain, upon the principle of a numerous class of cases, of which the leading 
 one is that of Pasley v. Freeman^ ; which principle is, that a mere naked 
 falsehood is not enough to give a right of action ; but if it be a falsehood 
 told with an intention that it should be acted upon by the party injured, 
 and that act must produce damage to him ; if, instead of being delivered 
 to the plaintiff immediately, the instrument had been placed in the hands 
 of a third person, for the purpose of being delivered to and then used by 
 the plaintiff, the like false representation being knowingly made to the 
 intermediate person to be communicated to the plaintift', and the plaintiff' 
 liad acted upon it, there can be no doubt but that the principle would 
 equally apply, and the plaintiff would have had his remedy for the deceit ; 
 nor could it make any difference that the third person also was intended by 
 the defendant to lie deceived ; nor does there seem to be any substantial 
 distinction if the instrument be delivered, in order to be so used by the 
 plaintiff, though it does not appear that the defendant intended the false 
 representation itself to be communicated to him. There is a false repre- 
 sentation made by the defendant, with a view that the plaintiff should use 
 the instrument in a dangerous way, and, unless the representation had 
 been made, the dangerous act would never have been done. 
 
 If this view of the law be correct, there is no doubt l)ut that the facts 
 which upon this record must be taken to have been found liy the jury bring 
 this case within the principle of those referred to. The defendant has 
 knowingly sold the gun to the father, for the purpose of being used by the 
 plaintiff by loading and discharging it, and has knowingly made a false 
 warranty that it might lie safely done, in order to effect the sale ; and the 
 plaintiff, on the faith of that warranty, and believing it to be true, (for 
 tiiis is the meaning of the term confiding), used the gun, and thereby 
 sustained the damage which is the subject of this complaint. The warranty 
 
 1 3 T. K. 51. 
 
 41—2
 
 644 CLEKMONT V. TASBURGH. [CHAP. V 
 
 between tliese parties has not tlie effect of a contract ; it is no more tliau 
 a representation ; but it is no less. The delivery of the gun to the father 
 is not, indeed, averred, but it is stated that, by the act of the defendant, 
 the property was transferred to tlie father, in order tliat the son niiglit use 
 it ; and we must intend that the plaintiff took the gun witli the fatlicr's 
 consent, either from his possession or the defendant's ; for we are to 
 presume that the plaintiff acted lawfully, and was not a trespasser, unless 
 the contrary appear. 
 
 We therefore think, that as there is fraud, and damage, the result of 
 tliat fraud, not from an act remote and consequential, but one contemplated 
 by tlie defendant at the time as one of its results, the party guilty of the 
 fraud is responsible to the party injured. 
 
 We do not decide whether this action would have been maintainable if 
 the plaintiff had not known of and acted upon the false representation ; nor 
 whether the defendant would have been responsible to a person not within 
 the defendant's contemplation at the time of tlie sale, to whom the gun 
 might have been sold or handed over. We decide that he is responsible in 
 this case for the consequences of his fraud whilst the instrument was in 
 the possession of a person to whom his representation was either directly 
 or indirectly communicated, and for whose use he knew it was purchased. 
 
 Rule discliarged. 
 
 VISCOUNT CLERMONT v. TASBURGH. 
 In Chancery, December 10, 1819. 
 [Reported in 1 Jacob and Walker, 112.] 
 
 This suit was instituted for the specific performance of an agreement, 
 between the plaintiff and defendant, who were possessed of contiguous 
 estates in the county of Norfolk, for an exchange of some lands lying on 
 the boundary. The agreement was dated the Sth of March, 1814, and the 
 titles were to be exchanged, and possession given, within a month from the 
 Michaelmas following. 
 
 The land belonging to the defendant, which was comprised in tliis 
 agreement, was, at the time, in the possession of two tenants, Chasteney 
 and Garrood, under an agreement for a fourteen years' lease. The answer 
 stated, that a conversation had taken place between the plaintiff and 
 defendant, upon the subject of the proposed exchange, which ended by the 
 defendant declining any further treaty. It then said, that, a short time 
 afterwards, the plaintiff came to tlie defendant, and informed him that he 
 had seen the two tenants, and that they were perfectly agreeable to the 
 exchange, and that he had settled every thing with them, and that, trust- 
 ing to this representation, he himself consented, and drew up and signed 
 the agreement, in which, from confidence in the plaintifl', no mention was
 
 SECT, in] CLERMONT V. TASBURGH. 645 
 
 made of the tenants having assented. Had it not been for his belief of the 
 plaintiflf's assurances, the defendant would not, he said, have entered into 
 the agreement; and finding, the next day, tliat the tenants liad in fact not 
 given their consent, he wrote to tlie plaintiff', stating his determination to 
 put an end to it. He submitted, that, until the plaintiff sliould liavo pro- 
 cured the assent of the tenants, he was not entitled to call for a perform- 
 ance of the agreement. 
 
 After the answer was filed, amendments were made in the bill, denjdng 
 tliat the defendant had made the representations stated in the answer, and 
 charging that Chasteney and Garrood were willing to give up tlieir 
 interests in the lands of the defendant, upon being paid the value of sucli 
 interests, which, according to the agreement, ought to be paid by the 
 defendant ; and also charging, that the defendant could make a good title, 
 subject to the interests of Chasteney and Garrood, in wliich case the value 
 would be proportionally reduced. 
 
 Mr. Hart and Mr. Wyatt, for the plaintiff. 
 
 Mr. Heald, Mr Phillimore, and Mr. Stephen, for the defendant. 
 
 The Master op the Rolls. 
 
 This bill is filed by Lord Clermont, for the specific performance of an 
 agreement. The defendant having, in liis answer, admitted the fact that 
 tlie agreement in question was made and signed, and, further, that it was 
 drawn up by himself, it lies upon liim to shew why he sliould not be 
 compelled to execute it. 
 
 On his part it lias been urged, in the first place, that the agreement 
 itself is not, upon the face of it, so clear as to enable the Court to carry it 
 into execution ; for, undoubtedly, one of the ingredients of a contract, the 
 performance of which can be decreed, is certainty. It was said that there 
 is here only a vague description of the lands to be exchanged ; tliat the 
 quantity is not specified ; and that, tliough it is stated tliat there was to be 
 a valuation, it does not appear for what pui-pose it was to be made. 
 These objections are not mentioned in the answer, and indeed, considering 
 that the contract was drawn by the defendant himself, it would not come 
 well from him, to rest his case upon tlie uncertainty of it. 
 
 The more important defence, however, is that made in the answer, — 
 that the defendant is absolved from the obligation of this contract, on the 
 ground of its having been obtained by misrepresentation. On this point 
 there are two questions ; first, whether it was so obtained ; and, next, if 
 that was the case, what the effect of it will be: whether it entirely puts an 
 end to the agreement, and deprives the plaintiff of the right of having it 
 performed, or whether, as has been contended for liim, it only vitiates it 
 quoad lioc, and leaves him at liberty to take the lands, subject to tlie 
 interests of the tenants, which he stated them to be willing to resign'. 
 
 ******* 
 
 ' The Master of the Rolls here rliscuRsecl the question of fact ns appcarinf; in the 
 ])leailinp:s n.ntl evitlence. — Ed.
 
 G46 CLERMONT V. TASBURGH. [CHAP. V 
 
 Tims stands the fact upon the evidence. I liave gone through tlie 
 whole ; and it shews, I think, that tliis representation was made, and that 
 it was not conformable to the fact. If what tlie witnesses say be true, 
 and as they are not contradicted, I must suppose that it is, I am bound to 
 say that the case of the defendants is made out in every part, and that 
 that of the plaintiffs is not. At the same time, I hope I shall not be 
 understood to act under the impression of the misrepresentation having 
 been wilful ; it arose no doubt from misunderstanding. 
 
 Under these circumstances, supposing this fact to be made out, the 
 next question is, what will be the consequence of it. On the part of the 
 plaintill" it was argued very judiciou.sly, that, supposing the fact of mis- 
 representation proved, it does not go the length of establishing that the 
 bill must be dismissed, or of preventing the plaintiff' from having a right 
 to a specific performance, if he will take the estate suliject to the lease. 
 It was urged that it would be of no consequence to the defendant, if the 
 plaintift' would abide by the agreement, exonerated from what is affected 
 by the misrepresentation. To this it is to be observed, in the first place, 
 that it is not the case made by the bill. It is there said throughout, that 
 if the land is to continue subject to the lease, it must be considered as 
 reduced in value, evidently meaning that as by the agreement possession 
 was to be given, the defendant must make a compensation if that article is 
 not performed. But it was contended at the bar, that if the fact of mis- 
 representation was made out, and that the defendant had in consequence 
 of it undertaken to put the plaintiff in possession, in which case it is 
 impossible, that he should be bound to make such a compensation ; yet if 
 that part of the contract be waived, that whatever may be the ettect on 
 the costs of the suit, if the plaintiff be willing to pay the costs, and 
 relinquish whatever was the effect of misrepresentation, he may demand 
 the performance of the rest. 
 
 Thus, what was asked at the bar, is not what is prayed in the bill ; 
 and if it were, it would be contrary to those principles on which the 
 Court acts in decreeing specific performance. There is no authority any- 
 where, no case where the Court has, when misrepresentation was the 
 ground of a contract, decreed the specific performance of it ; and nothing 
 would be more dangerous than to entertain such a jurisdiction. The prin- 
 ciple on which performance of an agreement is compelled, requires that it 
 must be clear of the imputation of any deception. The conduct of the 
 person seeking it must be free from all blame: misrepresentation, even as 
 to a small part only, prevents him from applying here for relief. 
 
 The reason of this is obvious : if it be so obtained, the contract is void 
 both at law and in equity. When an agreement has been obtained by 
 fraud, is the effect to alter it partially, to cut it down or modify it only ? 
 No ; it vitiates it in toto ; and the party who has been drawn in is totally 
 absolved from obligation. 
 
 If so, what equity has the other party, who, by his misconduct has lost
 
 SECT. Ill] CLERMONT V. TASIiUROII. 647 
 
 one contract, to call on the Court, for his benefit to make a new one? If 
 the defendant were wiling to consent to it, and to enter into a new agree- 
 ment, it would be a diflferent case ; but if he refuses, if ho insists that he is 
 absolved from it, what equity can there be in favour of the other. 
 
 Tliere are many cases wliere, although a contract cannot be literally 
 performed in all its parts, the Court will modify it, attending to the sub- 
 stance of it, and carry it into execution, relieved from the collateral 
 circumstances that form the difficulty. There are cases of this kind, 
 where, from lapse of time, it has become unconscientious to insist upon the 
 agreement modo et forma, or where there happens to be a small deficiency 
 in the number of acres. Here the contract becomes iiioperative at law, 
 and cannot be strictly performed ; yet the Court will decree it, dispensing 
 with the articles that are not essential to the substance. But this is only 
 where there has been a perfect bona fides ; there is no case where it has 
 been done at the instance of a plaintiff" who has practised any misrepre- 
 sentation. The principle is, that the party is barred, personally barred. 
 It was on this principle that the late Master of the Rolls, in Cachnan 
 V. Horner^, says, "as upon the evidence, the plaintiff has been guilty of a 
 degree of misrepresentation, operating to a certain, though a small extent, 
 that misrepresentation disqualifies him from calling for the aid of a court 
 of equity, where he must come, as it is said, with clean hands. He must, 
 to entitle him to relief, be liable to no imputation." He takes the distinc- 
 tion between the case of a bill for specific performance and the cases where 
 the Court is called upon to rescind the agreement, which, he says, would 
 admit of a different consideration ; and he puts the refusal of relief, on the 
 ground of the misrepresentation forming a personal bar. 
 
 If it were otherwise, and if a contract under these circumstances were 
 only to be altered pro tanto, and only the part thus obtained were to 
 be taken out of it, what encouragement would be offered to fraud. The 
 party, if not found out, would gain his object ; and if detected, would 
 have the benefit of the contract, in the same manner as if he had practised 
 no deception. The Court has therefore settled, that he must come with 
 perfect propriety of conduct. If he does not, that alone is a sufficient 
 answer to him. 
 
 Again, consider it with reference to the contract itself. The defendant 
 cannot give possession of the land, as his tenants do not consent ; he 
 engaged to do it under a wrong idea : he cannot, therefore, be compelled 
 to do it. That part of the contract cannot be performed ; there is, there- 
 fore, an end to that contract : it cannot be performed specifically, and 
 there is no reason here to substitute another in its place. If the plaintiff 
 came for the strict performance of the contract, terms might be put on 
 him, but how can we put tei-ms on the defendant! By the misconduct of 
 the plaintiff, that agreement is at an end ; and can we, on that account, 
 
 1 18 Ves. 10.
 
 648 DEPOSIT LIFE ASSURANCE V. AYSCOUGH. [CHAP. V 
 
 say to the defendant, you must not perform that agreement, but you must, 
 instead of it, perform another ? 
 
 In both ways, tlierefore, first viewing the misrepresentation as a 
 personal bar to the plaintifl', and, secondly, as destroying the contract, I 
 am of opinion tiiat lie is entitled to no relief. The whole of the bill is 
 negatived by the evidence; while the case of the defendant is proved. Tlie 
 bill must be dismissed, and with costs. 
 
 Reg. Lib. .B. 1819, fol. 202. 
 
 THE DEPOSIT AND GENERAL LIFE ASSURANCE COM- 
 PANY REGISTERED v. JOHN AYSCOUGH. 
 
 In the Queen's Bench, June 6, 1856. 
 
 [Reported in 6 Ellis & Blackburn, 761.] 
 
 Count. That " defendant, as and being the liolder of certain (to wit) 
 700 shares in the Company, was and is indebted to the said Company in a 
 certain sum (to wit) 350^., for certain instalments of capital, then and still 
 due and payable by him to the said Company in respect of the said shares : 
 yet defendant hath not paid the same." 
 
 Plea : "that defendant was induced to become the holder of the said 
 shares tlirough the fraud, covin and misrepresentation of the plaintiffs and 
 others in collusion with them." Demurrer. Joinder. 
 
 Badeley, for the plaintiffs, was stopped by the Court. 
 
 Quain, in support of the plea. The form of the count is given by stat. 
 7 & 8 Vict. c. 110, s. 55; but in substance it is founded on the contract 
 of the defendant, made when he became a shareholder. Fraud avoids that 
 contract like aU others. [Lord Campbell, C. J. The defendant, for aught 
 that appears on the record, keeps the shares and takes the benefit from 
 them, and yet refuses to pay calls ?] If lie has done any thing to affirm 
 the contract, it will be good matter for a replication ; but in pleas of fi'aud 
 it is not necessary to aver that the contract has been disaffirmed. The 
 fraud may perhaps not be discovered till the moment of the plea, which is 
 itself a disaiErmance. [Crompton, J. When the record shews that the 
 contract has been executed so far that the defendant has received a benefit, 
 I have doubted whether, in an action on the contract, the plea of fraud 
 must not shew that he has restored what he lias received. But this action 
 is not upon the contract; it is given by stat. 7 & 8 Vict. c. 110, s. 55, 
 against the holder of sliares; and your plea is not good unless it sliews the 
 defendant not to be the liolder of tlie shares. He is holder at least till he
 
 SECT. Ill] DEPOSIT LIFE ASSURANCE V. AYSCOUGH. 649 
 
 disaffirms, though ho became so in consequence of fraud.] In NniTy and 
 EnniskUkii Raihrai/ v, Coonihe^ it was held that infancy was a good plea 
 wthout any averment that the defendant did not adopt the shares when 
 he came of age. In Burnes v. Penndl' the appellant failed in proving 
 fraud ; but Lord Campbell, in delivering judgment in the Hou.se of Lords, 
 says that the acts of the directors must be looked to : " if the plaintiff has 
 been deceived and defrauded by them, and induced by them to purchase 
 the shares by their false representations, the interlocutor must be reversed." 
 Badeley was not called upon to reply. 
 
 Lord Campbell, C. J. I am of opinion that the plea is bad. The 
 action is brought under stat. 7 ifc 8 Vict. c. 110, s. .55, which gives this 
 action against the holder of any shares at the time when instalments 
 become due ; and the count contains the averments declared by that enact- 
 ment to be sufficient. The plea is, I think, insufficient, inasmuch as it 
 admits that the defendant still is a shareholder. It is now well settled 
 that a contract tainted by fraud is not void, but only voidable at the 
 election of the party defrauded. There is nothing on this record to shew 
 that the defendant has avoided the contract by which he became a share- 
 holder. He had a right, if he pleased, notwithstanding the fraud, to keep 
 the shares and receive the dividends ; and he may have intended to do so. 
 The plea therefore should go further, and shew, not only that he was 
 induced to become a shareholder through fraud, but that on discovering 
 the fraud he disaffirmed the transfer of the shares to him. In JVewnj and 
 Ejitdakillen Railway w. Coonihe' the plea was infancy, and that the defend- 
 ant, whilst an infant, disaffirmed the transfer. It was held that, if the 
 defendant, after coming of age, affirmed the transfer, that would be a 
 matter for a replication, and need not be negatived in the plea ; but there 
 the plea shewed the transfer void, unless an affirmative act were done to 
 render it valid ; here it shews the transfer valid, unless an act was done to 
 avoid it. In Burnes v. Fennell^ no question arose as to the forms of 
 pleading, or on whom the burthen of allegations lay. I hope that the 
 opinion I then expressed will be found to be correct, and that a share- 
 holder, induced to become such by the frauds of directors, may get freed 
 from his liability. I have myself no doulit that he may : but, to do so, lie 
 must cease to be a shareholder; and this plea does not shew that the 
 defendant has so ceased. 
 
 Coleridge, J. I am of the same opinion. The substantial averment 
 in the count is that the defendant was, at the time tlie instalments became 
 due, a holder of shares. By stat. 7 <fe 8 Vict. c. 110, s. 55, proof of that 
 averment is enough. The defendant, though he was induced to become a 
 shareholder by fraud, is entitled to the shares, and to all benefits arising 
 from them, until he ceases to l)e the shareholder. His plea does not shew 
 that he has ceased to be the shareholder, or has taken any steps to cease 
 
 > 3 Exch. 56.5. = 2 H. L. Ca. 497, 522. ' 2 H. L. Ca. 407.
 
 650 MOYCE V. NEWINGTON. [CHAP. V 
 
 to be so. It admits tliat he continues to be entitled to all the benefits 
 from the shares, and is, therefore, no defence to an action for tlie instal- 
 ments. 
 
 (Erle, J. had left the Court before the conclusion of the argument.) 
 
 Crompton, J. I see nothing on this plea to shew that the defendant is 
 not, up to this moment, the shareholder entitled to the benefits to be 
 derived from tliose sliares. He may have been induced to purchase the 
 shares by tlie frauds of the directors, but from innocent vendors. Others, 
 who are innocent, may have been induced to act on tlie faith of seeing 
 that the defendant was a sliareholder. He may have long received divi- 
 dends as a shareholder. All this is consistent with the present plea, 
 which does not deny the averment that he is the holder of these sliares. 
 
 I think that, if in such a case as this fraud can .be made a defence at 
 all, tlie plea must sliew that the defendant had done no acts to make him- 
 self a shareholder except those induced by the fraud ; and that, as soon as 
 lie discovered the fraud, he disaffirmed the transfer to him, and gave up 
 the shares, and that he ceased to be a shareholder. I am clearly of opinion 
 that the present plea does not shew enough. 
 
 Judgment /or plaintiff". 
 
 K' 
 
 l<J* '' MOYCE V. NEWINGTON. 
 
 In the High Court op Justice, December 20, 1878. 
 [Reported in Law Reports, 4 Queen's Bench Division, 32.] 
 
 This was an action for the conversion of certain sheep, tried before the 
 Lord Chief Justice at the last Maidstone assizes. 
 
 The facts sufficiently appear from the judgments. 
 
 At the trial the verdict was entered for the plaintiff, but the Lord 
 Ciiief Justice did not enter the judgment for either party. 
 
 Nov. 7. Willoughby and Shiress Will, for the plaintiff, moved for 
 judgment. It is clear that, apart from the statute 24 <& 2.5 Vict. c. 96, 
 s. 100, the plaintiff is entitled to judgment. The sale by the defendant to 
 c'i' Wale being procured by fraud was voidable by the defendant but not void, 
 and the plaintiff having purchased the sheep bona fide before the defendant 
 did any act to avoid the sale, his title to the sheep holds good : Benjamin 
 on Sales, 342; Stevenson v. Newnham^ ; White v. Ga/rden^ ; Powell 
 
 Iloyland' ; Load v. Green*. The question, therefore, is whether the 
 
 ' 13 C. B. 285. 2 10 C. B. 919. ■' 6 Ex. 67. ^ 15 M. & W. 21G.
 
 SECT. Ill] MOYCE V. NEWTNGTON. 651 
 
 statute makes any difference. The case of Lindsay v. Cundi/' is an autlio- 
 rity to the contrary. The judgment of this division was overruled in tlie 
 Court of Appeal", but on a different point. The statute does not say tliat 
 the "property" shall "revest," using tlie term "property" to denote tlie 
 right of the owner, but it says that the " property," meaning thereby the 
 tiling itself, shall be " restored." The meaning is that when the property 
 is found in the possession of the criminal, and is in the hands of the 
 police, it shall be given back to the prosecutor, and the section goes on to 
 say that the Court may award a writ of restitution or order the restitution 
 thereof in a summary manner. It never was intended that an inter- 
 mediate good title that had been obtained by an innocent purchaser should 
 be divested. [They also cited Horwood v. Smith^ ; Kingsfoixl v. Merrty ; 
 Parker v. Patrick''^. 
 
 Grantham, Q.C., and Arhuthnot, for the defendant, shewed cause. 
 There was not prior to 7 & 8 Geo. 4, c. 29, s. 57, of which 24 &. 25 Vict, 
 c. 96, s. 100, is substantially a re-enactment, any provision for restitution 
 in case of false pretences. It is submitted that the intention of these 
 enactments was to put the case of property obtained by false pretences on 
 the same footing as that obtained by larceny. Lindsay v. Gundy'' was not 
 a similar case to the present. There the original owner of the goods, from 
 whom they had been obtained by fraud, sued bona fide purchasers who 
 had before the conviction parted with the goods. It was held that the 
 title which the original owner of the property acquired under the statute 
 did not relate back, so as to give him a right of action against the defend- 
 ants who had parted with the goods while they had a good title. Scatter- 
 good V. Sylvester'', and Nickling v. Heaps^, are authorities in the defend- 
 ant's favour. [They also cited Reg. v. Siancliffa" ; Fowler v. 1/0111718'" ; 
 Peer v. Humphrey"]. 
 
 Willoughhy, in reply, referred to Citndy v. Lindsay''. 
 
 Cv/r adv. vult. 
 
 Dec. 20. The judgment of the Court (Cockburn, C. J., Mellor and 
 Field, JJ.) was delivered by 
 
 Cockburn, C. J. This was a case tried before me at the last assizes 
 for the county of Kent, and in which the action had been brought by the 
 plaintiff to recover a lot of forty-nine sheep under the following circum- 
 stances. On the 30th of October, 1877, the plaintiff, who is a butcher, 
 and who is in the habit of attending cattle and sheep markets, being at 
 Maidstone market, bought of a man named Wale, through a salesman of 
 the market, this flock of forty-mne sheep. The purchase was made in the 
 
 1 1 Q. B. D. 348. - 2 Q. B. D. 96. ' 2 T. K. 750. 
 
 " 1 H. & N. 503; 26 L. J. (Ex.) 83. ^ 5 t. E. 175. 
 
 6 1 Q. B. D. 348; 2 Q. C. D. 96. ' 15 Q. B. 506; 19 L. J. (Q.B.) 441. 
 
 8 21 L. T. (n.s.) 754. " 11 Cox, C. C. 318. '" Law Rep. 7 H. L. 757. 
 
 " 2 A. & E. 495, 499. '- 3 App. Cas. 459.
 
 652 MOYCE V. NEWINGTON. [CHAP. V 
 
 open market, the price was a fair one, and was paid. Tlie transaction was 
 a regular one, and no blame attached to the plaintiff in respect of it. It 
 turned out, however, that the sheep had been obtained from the defendant, 
 who is a farmer, by Wale, under colour of a purchase, but in reality by 
 false pretences. Professing to buy the sheep at the price of 48s. a head. 
 Wale gave in payment a cheque on a bank at which he had no funds and 
 kept no account. The cheque was of course dishonoured. A warrant was 
 taken out against Wale by the defendant on the 25th of October, and he 
 was afterwards convicted of having obtained the sheep by false pretences, 
 and it must be taken for the present purpose that they were so obtained. 
 
 It is to be observed that, though the sale from Wale to the plaintiff 
 took place in open market, it was admitted before us that the market, 
 having been recently established by the corporation of Maidstone under a 
 local Act, was not one in respect of which the protection arising from a 
 sale in market overt would attach. The sheep were taken to the plaintiff's 
 premises at Scale, which is some distance from Maidstone, and arrived 
 there on the 31st, the ensuing day. On the 7th of November the defend- 
 ant, having in the meantime set the police to work, and having learned 
 what had become of the sheep, went with a police-officer to the plaintiff's 
 premises, and there took possession of the sheep, which were afterwards 
 removed to his own farm. On the 7th of November Wale was convicted 
 of obtaining the sheep by false pretences. The sheep being already in tlie 
 defendant's possession no order of restitution was asked for. The question, 
 under the circumstances, is which of the two, the plaintiff or defendant, is 
 entitled to the sheep. 
 
 Although, if the matter rested on abstract principle, it might be open 
 to be contended that, inasmuch as, to make a valid contract, laoth parties 
 must intend to be bound by it, consequently, when in an apparent contract 
 of sale the buyer intends to get the goods, but not to pay for them, but to 
 defraud the seller, the contract fails to take effect, and though the seller 
 intended the property to pass, yet that, the contract failing to take effect, 
 the property still remains unaltered, yet the question is now so concluded 
 by authority as to be no longer open to discussion. We must now take it 
 to be settled — it is unnecessary to go through the cases, which are set out 
 in Mr. Benjamui's work — that though a seller is induced to sell by the 
 fraud of tlie buyer, and though it is competent to the seller by reason of 
 such fraud to avoid the contract, yet, till he does some act to avoid it, the 
 property remains in the buyer, and that, if he in the meantime has parted 
 with the thing sold to an innocent purchaser, the title of the latter cannot 
 be defeated by the original seller. Tlie reasoning on which this conclusion 
 is based may not appear altogether consistent witii principle, and agreeing 
 in the result we should prefer to adopt the view of the American courts, 
 as stated in the case of Root v. French', a case decided in the Supreme 
 Coui't of Judicature of the State of New York, according to which the 
 
 ' 13 Wendell, 570.
 
 SECT. Ill] MOYCE V. NEWINGTON. 653 
 
 preference thus given to the right of the iunoucut purchaser is treated as 
 an exception to tlie general law, and is rested on the priiici})le of ecjuity 
 that where one of two innocent parties must suffer from the fraud of a 
 third, the loss should fall on him who enabled such third party to commit 
 tiie fraud. But on wliate^er ground it may be said to rest, tiie law must 
 be taken to bo now definitively settled. 
 
 The question which in some cases might be a very material one, as well 
 as one of some nicety, viz. what, on the part of the defrauded seller, short 
 of retaking possession of the thing sold, will amount to an avoidance of the 
 contract, does not arise in tlie present instance. Tiie defendant not know- 
 ing what had become of his sheep, or where to find Wale, his buyer, had 
 done and could do nothing, beyond giving notice to tlie police, up to the 
 time when the sheep were bought by the plaintiff. 
 
 We must take it, therefore, as incontestable, that but for the subsequent 
 conviction of Wale for having obtained these sheep by false pretences, no 
 question could be raised as to the title of the plaintiff. But it is contended 
 that by reason of such conviction the defendant is entitled to the benefit of 
 the provision of 24 &, 25 Vict. c. 96, s. 100, which enacts that where 
 property has been obtained (inter alia) by false pretences, on conviction of 
 the party so obtaining it, restitution shall be made to the party from whom 
 it has been so obtained. But we are clearly of opinion that this enactment, 
 which is in these terms, — " If any person guilty of any felony or misde- 
 meanour, in stealing, taking, obtaining, extorting, embezzling, converting, 
 or disposing of, or in knowingly receiving any chattel, money, valuable 
 security or other property whatsoever, shall be indicted for such offence by 
 or on behalf of the owner of the property or his executor, or administrator, 
 and convicted thereof, in such case the property shall be restored to the 
 owner" — has no application to such a case as the present. The language 
 applies, and is obviously intended to apply, to cases, and to these only, in 
 which possession has been obtained without the property passing. Tiiis 
 was the construction put on the statute by this Court in Lindsaij v. Cundij ' ; 
 and though the view there taken by the Court on the primary question, as 
 to whether a contract had been made by the sellers with the person obtain- 
 ing the goods, was reversed on appeal ; the second ground of the judg- 
 ment, which is the one immediately applicable to the present case, remains 
 unshaken, and we have no hesitation in adhering to it. And it is strongly 
 confirmed by the case of Norwood v. Smith', which was a case of sheep 
 stolen and sold by the thief in market overt, and in which the thief was 
 convicted of the larceny ; yet it was held that, as the conviction did not 
 take place till after the sale, the owner was not entitled to restitution 
 under 21 Hen. 8, c. 11. In the present case, as in the foregoing, there was 
 no property in the prosecutor at the time of the conviction. It had been 
 parted with by a contract, which, though under the circumstances voidable, 
 ceased on the sale before it had been avoided to be any longer voidable ; 
 1 1 Q. B. D. 348. - 2 T. K. 750.
 
 654 CAKPENTER V. HERIOT. [CHAP. V 
 
 and as to which, therefore, tlie right of the plaintiff had become indefea- 
 sible. It cannot have been the intention of the statute to defeat it never- 
 theless, and by the mere conviction of the fraudulent purchaser to deprive 
 the innocent buyer of the right which, according to the decisions in the 
 series of cases already referred to, had become absolute in him. 
 Our judgment must therefore be for the plaintiff. 
 
 Judginent for the 2}lai'ntiff'. 
 
 SECTION IV. 
 
 UNDUE INFLUENCE. 
 
 CARPENTER v. HERIOT. 
 In Chancery, June 18, 1759. 
 
 [Reported in 1 Eden, 338.] 
 
 Colonel Carpenter, by his marriage articles dated the 15th of May, 
 1717, covenanted with trustees, that Harriet Thornbury, his intended wife, 
 should have the interest of 4000/. for her separate use, and after her death, 
 if he survived her, that it should be paid to him for life, and then be paid 
 to and amongst such child or children as should be born, by the said 
 Robert Carpenter on the body of the said Mary Thornbury begotten, in 
 such proportions as the survivor should, by writing or will, direct or 
 appoint ; and for want of such appointment, in equal proportions to and 
 amongst such child or children, if more tlian one, <fec. 
 
 The plaintiff was the eldest son of the above marriage : his father liad 
 purchased several commissions in the army for him wliilst he was under 
 age, the price of which amounted to 2100/. He afterwards procured his 
 son to execute a bond, dated the 29th of September, 1744, for 7000/., 
 conditioned foi- tlie payment of 3500/. on the 29th of September following. 
 Colonel Carpenter, wlio had been very extravagant, and spent tlie whole 
 of his fortune, by his will, dated the 27th of March, 1745, reciting his 
 marriage articles, and taking notice that all his children, except the four 
 youngest, were provided for, gave the bond to the plaintiff on condition 
 that he made over certain reversionary interests, which he was entitled to 
 under the will of Major Edwards, to the younger children; if not, the 
 bond was to go for the benefit of the younger children. 
 
 The bill prayed that the bond might be delivered up, or stand as 
 a security for the money advanced by the father, antecedent to the bond.
 
 SECT. IV] CARPENTER V. HEHIOT. 635 
 
 The answer of the dofendant lleriot, wlio had iiian-icd one of the 
 daughters of Colonel Carpenter, set forth a letter which he had received 
 from the plaintift', in answer to one in which he had expressed his 
 intentions of paying his addresses to his sister, in which tlie plaintiff 
 said that liis sister would be entitled to 500^. upon the death of a 
 relation. 
 
 The Solicitor-General and Sewell for the plaintiff. 
 
 The Attorney-General and de Grey for the defendants. 
 
 The father's condition is impeached by a favourite son, who wants to 
 set aside a pious act done for the residue of a family who are dependant on 
 him. This transaction is not to be considered in the light of a common 
 money bargain between two persons unrelated. Colonel Carpenter had 
 wasted the best part of his fortune by living beyond his income : he there- 
 fore calls upon his son to stand in loco parentis towards his unprovided 
 children. It is a voluntary bond, which this court will not set aside for 
 the obligor himself. But even supposing it to be a transaction of a nature 
 that the court would relieve against, the subsequent acknowledgment of it 
 in the letter to Mr. Heriot must operate as a coniinnation. Lord Chester- 
 field V. Janssen\ 1750. 
 
 The Lord Keeper. 
 
 The question in this case is no more than this : A father advances one 
 child in his infancy ; he then, upon the child's coming of age, calls upon 
 him to give him an absolute bond for 3500^. payable within one year ; the 
 sum in condition being HOOl. more than the father pretended ever to 
 have advanced ; whether this bond should stand in equity for the whole 
 sum, or as a security for any money advanced ? 
 
 It has been said that this is a reasonable transaction. The father had 
 spent his fortune ; he calls on the only son that he had established in life, 
 to stand in loco parentis, and to supply his father's extravagance, and 
 provide for his brothers and sisters, or to go to gaol. Nay, it was said, 
 that it is the duty of the eldest son to employ his labours to supply tlie 
 duty of the father, and provide for his brothers and sisters. 
 
 Were I to adopt this reasoning and equity, I should give to tin; 
 paternal authority that of tlie old Roman law, a power of vendition of his 
 children, contrary to that natural equity which raises no debitum between 
 brothers and sisters, and wliich is acknowledged by the municipal law 
 here, which notes the paternal, not the collateral obligation. 
 
 But if an agreement between father and son for the son (without any 
 consideration moving from the father), to provide for his brothers and 
 sisters, could be supported in equity ; it must be such a one as the son at 
 the time of entering into was capable of carrying into execution. How is 
 this 1 It is an agreement, not to make any reasonable provision for his 
 brothers and sisters, but for his father to throw him into gaol when he 
 
 ' 1 Atk. 301; 2Ves. 125.
 
 656 CARPENTER V. HERIOT. [CHAl*. V 
 
 pleases. Tiiere is not a pretence that he could have satisfied the condition 
 of this bond. But, besides, there is no proof that any such agreement was 
 intended ; the bond is for money payable at a short time, absolutely. 
 
 But tlien it is said, suppose the bond without consideration and volun- 
 tary, this court will not set it aside : it is certainly true, that if the obligor 
 gives a voluntary bond, and never complains of any imposition or hardship 
 in obtaining it, tliis court will only postpone it to creditors, and not set it 
 aside for other volunteers. Nay, if it be given with advice and delibera- 
 tion, tliis court will not set it aside for the obligor. 
 
 But if a man gives a voluntary bond for more than he is able to pay, 
 the ti-ansaction speaks weakness on one side, and a sort of imposition on 
 the other. And this court would have but little equity, to support a 
 transaction, so much against conscience. 
 
 But, however, this is not the case of a voluntary bond. It is plain by 
 the proof, that the money advanced by the father was represented to the 
 son as the consideration. Now I am of opinion that it was none. For the 
 purchase of the commissions was a gift to the son, as much as if the father 
 had purchased an estate in the son's name. And therefore when the 
 plaintiff, on the father's representation, considered this as a debt, he 
 yielded to paternal autliority, and was deceived, and against such deceit 
 ought to be relieved in tliis court. 
 
 It has however been said, that the son has confirmed this since the 
 father's death ; and there are many cases where subsequent confirmation of 
 an agreement shall bind. And Mr. Spencer's case with Sir Abraham 
 Janssen was mentioned. But the present differs materially from that case. 
 There, the contract was only voidable pro tanto for the excess. This, is 
 ab initio void in a court of equity. It was a mistake on one side, and an 
 imposition on the other, there not being a grain of consideration from 
 the father. 
 
 The confirmation here, too, is only fished out from a loose expression in 
 a letter, which might not be applicable to this matter. Mr. Spencer's was 
 a solemn confirmation by a new bond. Here the expression does not go so 
 far as to say he intended to make the void obligation good. But he only 
 says that, upon the death of some relation (not mentioning expressly this 
 relation, upon whose death the contingent interest was to descend), his 
 sister might be entitled to .500/. 
 
 It appears to me that this bond was obtained by paternal influence. 
 I am therefore of opinion that it ought to be cancelled, for as nothing was 
 lent, there is nothing for which it can stand as a security.
 
 SECT. IV] HYLTON V. HYLTON. 667 
 
 HYLTON V. HYLTON. 
 
 In Chancery, July 25, 1754. 
 
 {Reported in 2 Vescy Senior, 517.) 
 
 The plaintiff had considerable gifts or provisions left to him by the 
 will of Philippa Downes, his aunt, and Charles Palmer his half brother. 
 The defendant his uncle, was acting executor and trustee in both those 
 wills, and also acted as guardian to him during his minority, liaving 
 neither fatlier or mother. Coming of age in April, 174G, he in October, 
 1747, entered into a transaction with his uncle, whereby the plaintiff 
 granted to hini an annuity of GO^., gave him a general release and two 
 written discharges, all signed the same date with the grant, upon his 
 delivering up several papers. 
 
 The bill was to set aside this grant of annuity upon the general 
 principles of being made just after coming of age, without lieing thoroughly 
 infor-med ; and that it is not necessary to prove imposition, for these 
 voluntary grants have not been allowed in several instances ; and are to 
 be compared to a gift to an attorney pending the suit; so of marriage 
 brocage-bonds. In Pierce v. Warinij, 13 Novemljer, 1745, Mr. Hall 
 coming of age made a present to his guardian of 3500^. stock : Your Lord- 
 ship held, it ought to be set aside on the general principles from the 
 dangerous consequences, if a guardian is allowed to take presents, lief ore 
 he delivered over every thing ; for that it was an honorary trust, for 
 which the law would allow tiicm nothing ; as that would induce guardians 
 to flatter the passions of their pupils ; and it was set aside for being 
 retained by him on pretence of trouble during his minority in management 
 of tlie trust ; and that case is not so strong as the present. 
 
 For defendant it was said, there were particular circumstances dis- 
 tinguishing this from the common case ; that all was fair, and the 
 defendant delivered up all the estate under both wills, and what more 
 would the plaintiff havel That it proceeded freely and voluntarily from 
 the bounty of the plaintiff, and for services done, and to relieve the 
 distress of his uncle and guardian ; and that there appears a letter from 
 plaintiff' to defendant using many kind and favourable e.xpressions, and 
 shewing that he thought, the defendant had acted fairly. 
 
 Lord Cuancellok. 
 
 The question is, whether the plaintiff is in this court intitlod to be 
 relieved totally against this grant, or whether it is to stand for the wiiole 
 qr any part. The grounds for relief are first the general grounds and 
 principles allowed in this court : next particular grounds from circum- 
 stances in this case. 
 
 F. 42
 
 658 HYLTON V. UYLTON. [CHAP. V 
 
 Tlie general grounds to be relieved against this annuity are certainly 
 of such a kind, as the court has allowed in other instances, provided the 
 circumstances of this case came up to the rule laid down therein. Where 
 a man acts as guardian, or trustee in nature of a guardian, for an infant, 
 the court is extremely watchful to prevent that person's taking any 
 advantage immediately upon his ward or cestuy que trust coming of age, 
 and at the time of settling account or delivering up the trust ; because an 
 undue advantage may be taken. It would give an opportunity either by 
 flattery or force, by good usage unfairly meant, or by bad usage imposed, 
 to take such advantage ; and therefore the principle of the Court is of the 
 same nature with relief in this court on the head of public utility, as in 
 bonds obtained from young heirs, and rewards given to an attorney 
 pending a cause and marriage brocage-bonds. All depend upon public 
 utility; and therefore the court will not suffer it, though perhaps in a 
 particular instance there may not be an actual unfairness. Upon that ground 
 I went in the case cited ; in which I have added at the end of my note 
 taken at the hearing of the cause, "to be absolutely set aside, being 
 between a guardian and his ward just come of age, and on reason of public 
 utility." How does this case stand 1 The defendant appears to stand in 
 the place, not of a common trustee barely of a particular estate, but of a 
 trustee acting in fact as guardian for the minor his nephew, and taking 
 care of his person and his estate ; so that the condition of these persons, 
 the plaintifl' and defendant, comes within this rule. Next considering the 
 nature of the transaction, wliich was when the plaintiff was about twenty- 
 two, the result is, (and this brings it within Fierce v. Waring), that at the 
 very time this uncle, who was trustee and acted as guardian, pretended to 
 come to an account and deliver up the estate the plaintiff was intitled to, 
 he took a voluntary beneficial grant of an annuity from this ward of his. 
 That is the very time at which there is the best opportunity to take the 
 advantage of getting such a bounty as this ; for at that very time the 
 estate is to be accounted for and delivered up. The thing speaks itself. 
 " I will not deliver up the estate you are intitled to, and account, unless 
 you grant me this." Beside, it appears to be a previous design of the 
 defendant, and that he stipulated and haggled for that annuity at that 
 very time, when a trustee should avoid it. The rule of the court as to 
 guardians is extremely strict, and in some cases does infer some hardship ; 
 as where there has been a great deal of trouble, and he has acted fairly 
 and honestly, that yet he shall have no allowance : but the court has 
 established that on great utility, and on necessity, and on this principle of 
 humanity, that it is a debt of humanity that one man owes to another, as 
 every man is liable to be in the same circumstances. Undoubtedly, if after 
 the ward or cestuy que trust comes of age, and after actually put into 
 possession of the estate, he thinks fit, when sui juris and at liberty, to 
 grant that or any other reasonable grant by way of reward for care and 
 trouble, when done with eyes open, the court could never set that aside :
 
 SECT. IV] PROOF V. HINES. 659 
 
 but tlie court guards against doing it at tlic very time of accounting and 
 delivering up the estate, as tlic terms : for the court will not sufl'er them 
 to make that the terms of doing their duty. This case therefore is witliin 
 those general principles. 
 
 Next, as to the particular circumstances relied on to distinguish this 
 out of the general rule, I am of opinion they all bear against that, and 
 tend to shew actual imposition on the part of the defendant. It does not 
 appear, that the nephew was in circumstances to grant this clear annuity, 
 any more than the uncle was to provide for himself ; as to whose ability 
 there is nothing in proof except what arises from the plaintiff's letter. 
 Tiie circumstances plainly shew the defendant would not part with the 
 estate until he was sure of this grant ; then here is a ground to go not 
 only on the general principles, but to shew that the defendant did actually 
 make use of that influence. The plaintiff's letter, and the kind expression 
 therein shew, he was imposed upon, thinking everything was surrendered 
 up, whereas the legal estate is still in the defendant : nor is there any 
 evidence of an account made up of the personal estate proved to have 
 come to the defendant's hands. Certainly, if any thing could make such a 
 transaction supportable, it must be where there was a real and fair 
 account ; of which there is no evidence : yet a general release is given 
 upon delivering up several papers and vouchers, as they are called. 
 
 Therefore on the general rule and nature of this particular case, and 
 tlie delusion and deception under which the plaintiff" was, this grant ought 
 to be set aside with costs ; and a conveyance, and an account, if plaintiff' 
 prays it. 
 
 PROOF V. HINES. 
 In Chancery, July 3, 1734. 
 
 [Reported ill Cases Tempore Talbot, 111.] 
 
 The plaintiff being intitled, in right of his wife, to some part of the late 
 Sir Thomas Coleby's estate, and being a very mean illiterate person, and in 
 very poor circumstances, applied to the defendant, (a brazier by trade,) and 
 his wife to assist him in making out his pedigree, and getting such proofs 
 as were necessary to the making out his title to this estate ; the defendant 
 telling him. That such things could not be done without money ; and he 
 answering, That he had none, nor did not know where to raise any without 
 the defendant's assistance, desired him to advance it, and he would repay 
 him: The defendant accordingly laid out several sums; and the defendant's 
 wife employed several persons to search registers, ifec. for the plaintiff'; 
 pendmg the suit the defendant's wife often declared. That she thought 
 
 42—2
 
 660 PROOF V. HIKES. [chap. V 
 
 herself and her husband intitled to a good gratuity for their trouble and 
 assistance of the plaintifl'; but was resolved not to trust to the plaintifl''s 
 generosity, but to bind him as fast as pen and ink could bind him. The 
 plaintiff coming sonic time after to the defendant's wife, desired her to 
 continue her and her husband's care for his affairs ; she thereupon pressed 
 him very much for the payment of what money had been laid out by them ; 
 whereupon he offered to give a bond for 1000^. payable to the defendant 
 in a year, for what services they had already done, and for such care as 
 they would hereafter take of his aflfiiirs ; to which the defendant's wife 
 replied, he might take what time he pleased for payment of the bond, but 
 pressed very hard for repayment of what had been laid out by her husband 
 and her : the plaintiff gave her his bond for 1000^. for the use of the 
 defendant her husband after the recovery of some part of the estate by the 
 plaintiff; this bond was put in suit, and now the plaintiff brought his bill 
 to have it set aside as unduly and unconscionably obtained, by taking 
 advantage of the distress he was then under. 
 
 It was in proof in the cause, that at the time he gave this bond he was 
 in the meanest circumstances, being reduced so low as to live upon what 
 broken scraps of meat he could get from taverns and such places. 
 
 Mr. Vcrney, Mr. Fazctlcerley, and Mr. Mills argued for the plaintiff, 
 that he appearing to be illiterate, and in such mean indigent circumstances, 
 must naturally be supposed in the defendant's power; and that the 
 necessity of his circumstances was the cause of giving the defendant a bond 
 for such an exorbitant sum. It can never be imagined that being sui juris 
 he would have entered into a bond by which the defendant had it in his 
 power to throw him into gaol, and keep him there all his life, whether he 
 had the good fortune to recover what lie was then suing for or not. And 
 it can as little be thought that this bond was designed as a mere gratuity 
 to the defendant, the plaintiff being at that time not worth 51. in the 
 world, and it being very uncertain whether he should ever be in better 
 circumstances than he then was. Bonds taken from young heirs, marriage- 
 brocage bonds, though given quite voluntarily, and often too cheerfully, 
 are set aside in this court upon the reason that the party is not a free 
 agent, and that the free operation of the mind, which is necessary to give 
 validity to every act, is wanting. This appears from the case of Curwen 
 v. Milhier, June 19, 1731, and from 2 Vern. 14, 27, 121, and the case of 
 Twisleton and Griffith heard before the Lord Cowper, 1716. These cases 
 indeed were upon contracts ; where it may be said nothing was intended 
 by way of gratuity : But there are cases where bonds merely voluntary, 
 and not founded upon contracts, have been set aside, as being unconscion- 
 able. 1 Vern. 413, 1 Salk. 158, 2 Vern. 652, 764. In most of these cases 
 there was a hazard run by the defendant, the whole money must have been 
 lost upon a contingency ; but here the defendant runs no hazai'd, nor can 
 he have any other loss than that of his advice. The case of Bosanqueii' v. 
 
 1 Cas. Temp. Talbot, 83.
 
 SECT. IV] PROOF V. HINES. 661 
 
 Dashwood, Nov. 11, 1733, is another very strong authority, that where 
 advantage is taken of either party's circumstances and necessities, tliis 
 court will relieve. Nor will the considerations moving partly from the wife, 
 vary the case; for, her declaring that she would not trust the plaiiitiM's 
 generosity, but would bind him as fast as pen and ink could l)iiid him, 
 and the husband's afterwards accepting the bond, makes it to be his own 
 act ab initio. 
 
 Mr. Atlornei/-General and Mr. Solicitor-General argnedior the defendant, 
 that there were many cases where the court perhaps would not decree 
 a performance of the condition of a bond ; but yet upon application made 
 by the obligor would not set it aside. That this case was very different 
 fi'om the cases of bonds given by young heirs, or for marriage brocage, 
 where the whole rests upon contracts, but nothing is intended by the way 
 of gratuity : as it is in tlie present case. The illegality of the consideration, 
 fraud, accident, will entitle to relieve here ; but it was never yet said, that 
 a man's poverty, barely and merely witiiout any other ingredient, would Ije 
 a sufficient cause for setting aside any voluntary contract he may liave 
 entered into through his own carelessness, and which the other party may 
 (through want of Christianity perhaps) inforce a perfonnance of. 
 
 Here the past services done to the plaintiff' by the defendant, and 
 expectation of future services, were the motives upon which the 'plaintitt' 
 gave this bond : and none of the cases cited will warrant the setting aside 
 a bond merely voluntary as this is. The plaintiff" camiot be said to be 
 otiier than a free agent : only because he had a great mind to recover the 
 part of the estate which he apprehended to be his due ; which was the 
 only influence he was under at the time he entered into this bond. The 
 case of Bosanquctt v. Dashwood (though one of the reasons for the decree 
 was the unfair advantage that one party had taken of the other's 
 necessity) was very different from this ; for tliough the statute does not go 
 so far as to make the party receiving the usurious interest liable to refund, 
 yet having prohibited the taking beyond such a sum, and avoided tlie con- 
 tract, tlie taking it is a breacli of the statute, and the actual receipt of the 
 money will (in a court of equity) make him liable to refund ; the wrong 
 being the same, whether the insurious interest has been actually paid 
 or not. In the present case it is observable, that the bond was never put 
 in suit, nor payment of it demanded until after the plaintiff"s recoveiy of 
 what he was suing for ; which takes oft' the objection, that he might have 
 lain in prison all his life, whether he had prevailed in his suit or not. 
 
 Lord Chancellor. I have been a good deal doubtful in this case : 
 for, as on the one hand it is entirely reasonable to leave people at liberty 
 to dispose of their property as they think fit ; so on the other hand, it is 
 reasonable to prevent any imposition in such disposal : and if herfe has 
 been no imposition on the plaintiff" and that all liis defence be his poverty, 
 or the inconveniency it may bo to him to pay this sum, that will not be
 
 PROOF V. HINES. [CHAP. V 
 
 a ground for relief. But as this case is circumstanced, the plaintiff's 
 poverty is not to be omitted in the consideration of the transaction. His 
 circumstances were as mean as can be imagined, and no certainty that he 
 should be ever able to discharge any part of this bond ; and yet he gives an 
 obligation for 1000^. to be paid, at all events, within the year. A poor 
 illiterate man, who applies to the defendant and his wife for aid in pursu- 
 ing his claim : they answer, that registers could not be searched, nor other 
 things done without money : he thereupon replies, that he has none, but 
 desires the defendant to lay it down for him. The cause goes on, and 
 ponding this suit, the defendant's wife presses for the money laid out ; 
 wlioreupon the plaintiff declares, that for the services they have done, and 
 he hoped they would continue, he would give a bond ; upon which the wife 
 replies, he might take what time he pleased for tlie payment of the bond ; 
 but at the same time again presses for repayment of the money laid out by 
 her husband and her, and then the bond is given. So that here is a plain 
 contract between them : and how can I consider it as a gratuity, or other- 
 wise than as a contract ? Now though a mere voluntary contract is not to 
 be set aside purely and simply because it is voluntary ; yet that differs 
 widely from the present case ; which was not intended as a liounty, liut as 
 an execution of an original contract for the services already done. Had 
 an attorney, pending the suit, taken such a bond as this upon the same 
 transaction, would not the court set it aside '? or would it suffer it to stand 
 any farther than as security for what was justly and legally due ? The 
 rule, Tliat a mischief is rather to be suffered than a general inconvenience, 
 does not at all affect this case ; for, it would be a much greater inconveni- 
 ence to leave men under difficulties and distresses open to all the oppression 
 that other people may please to make them undergo. This is the reason 
 upon which the court relieves against bonds given )iy young heirs, and 
 marriage-brocage bonds ; and will not suffer any advantage to be taken of 
 the extravagance and want of judgment, in the one case, and of the strong 
 bias to obtain what was desired in the other. The only difficulty that 
 arose with me was, whether the defendant had any share himself in the 
 transaction ? and that where fraud is pretended it must be fully proved. 
 Here indeed the husband was not present when the bond was executed ; 
 Ijut still, I think, there is sufficient ground for relief: for, here the wife was 
 party to all the transactions in searching registers, &c. The contract for 
 the bond was for their joint service ; and though she did not press for the 
 bond, yet slie pressed for what worked more strongly, viz. the repayment 
 of the money wliich she and her husband had lain out at the time that he 
 was not worth a shilling, and in the midst of the pursuit of his cause : and 
 when this comes to be coupled with that other saying of her's. That 
 she would not trust to his generosity, but bind him as fast as pen, ink and 
 paper could bind him, it makes it plain that it was obtained of the plaintiff 
 when under force and necessity ; the pressing for the repayment being 
 almost as strong as if she iiad actually required the bond.
 
 SECT. IV] DENT V. I5ENNETT. 663 
 
 And so decreed the lioiul to stand as a security only for so much as liad 
 been actually laid out with interest ; and left the defendant at liberty to 
 bring his quantum meruit at law for what he deserved for his pain and 
 ti'oulile. 
 
 DENT V. BENNETT. 
 
 In Chancery, January 29, 1839. 
 
 [Reported in i Mijlne <C- Craig, 269.] 
 
 Tnis was a suit to restrain the defendant from proceeding in an action 
 at law upon a written agreement in his favour, alleged to have been 
 entered into by Jonathan Dent, of whose will the plaintiff was the 
 executor, and to have the alleged agreement delivered up to be cancelled. 
 
 The terms of the agreement, and the statements of the defendant's 
 answer to the original bill with respect to it, appear in Mr. Simons' report 
 of the proceedings before the Vice-Chancellor upon the question of dissolv- 
 ing the common injunction upon the coming in of that answer'. 
 
 Tlie bill was afterwards amended, and the defendant put in his answer 
 to the amended bill on the 30th of May, 183G. In this answer the 
 defendant admitted that Crowder, the person in whose presence the agree- 
 ment was stated to have been signed, did not, at that time, put his name 
 or' any initials or mark on the agreement, but paid minute attention to the 
 testator's signature, and that the defendant remained with the testator for 
 about half an hour after he had signed the same, without having the 
 agreement witnessed or signed by Crowder or himself ; and that he took it 
 away without having signed it, and kept it until the testator's death ; and 
 he believed the testator had no copy, the original draft iiaving been burnt 
 by the defendant in the testator's presence, immediately after its contents 
 had been fairly copied for the testator's signature. 
 
 Some evidence was afterwards taken, the particulars of which will Ijo 
 found in the Lord Chancellor's judgment. 
 
 The cause now came on to be heard. 
 
 Mr. Knight Bright, Mr. Betliell, and Mr. Wright, for the plaintiff. 
 
 Mr. Wigram and 3fr. Stuart, for the defendant. 
 
 In the course of the argument the following cases were cited and 
 commented upon ; Fillers v. Beaumont', Bridgman v. Green''\ Gibson v. 
 Jeyes", Harris v. Tremenheere^ , Uuguenin v. Baseleif , Griffiths v. Robins^, 
 Lord Selsey v. Ehoades", Popham v. Brooke', Earl of Winchilsea v. 
 
 1 7 Sim. 539. = 1 Vcrn. 100. ' 2 Ves. Son. G27. ■• G Ves. 2fi0. 
 
 -' 15 Ves. 34. « 14 Ves. 273. ' 3 Mad. 191. » 2 S. & S. 41. " 5 Buss. 8.
 
 (5g4 DENT V. BENNETT. [CHAP. V 
 
 Garetty\ Nichol v. Vauglian\ Pratt v. Barlcer\ Hunter v. AtMns% 
 Sinipso7i V. Lord Hoivden^. 
 
 The Lord Chancellor. 
 
 The object of this bill is to have a certain agreement, alleged to have 
 been signed by the plaintiS"s testator, delivered up to be cancelled ; and 
 for an injunction against an action at law upon it. The Vice-Cliancellor 
 "ranted the injunction, which has not been dissolved ; and the question 
 now is, upon the pleadings and proofs in the cause, whether the plaintiff is 
 entitled to have the agreement delivered up. 
 
 The defendant was a surgeon and apothecary, who had, in the year 
 1827, attended the testator, Jonathan Dent, in what is represented to 
 have been a dangerous attack and illness. The agreement is dated the 
 l.'ith of September, 1829, at which time the testator was in his eighty- 
 si.xth year ; so that, according to the usual course of nature, what might 
 remain to him of life must have been supposed to be confined to a very 
 short time from that period ; yet, by the agreement, if it is to be looked at 
 as a contract for value, the testator agrees to pay to the defendant 
 25,000Z. for the medical and surgical assistance of the defendant during 
 the remainder of the testator's life. 
 
 The testator had employed the defendant for some years before, and 
 must, therefore, have known at what rate those medical and surgical 
 services might be secured. The defendant's books have been produced, 
 and shew that, except upon the occasion of the illness in 1827, when the 
 charge was about 30^., the defendant's annual bills were exceedingly small ; 
 and at the date of the agreement the testator is represented as being in 
 good health. As a contract, therefore, for value, the transaction is more 
 extravagantly absurd than any that has come under my notice ; and if 
 the case rested upon that, would only require to be stated ; and yet the 
 defendant, in his answer, insists "that 25,000?. was, in fact, no more than 
 a reasonable compensation to be paid to this defendant for the professional 
 services stipulated for by this defendant, and for the medicines to be 
 provided for the said testator on the part and at the expense of this 
 defendant." It is hardly worth while to observe that tlie defendant, 
 according to his own statement, took away the agreement, after the 
 testator had signed it, without signing it himself, and that the testator 
 never had any means in his power of enforcing the stipulation supposed to 
 be of so much value. 
 
 The agreement, however, professes to be founded not only upon the 
 consideration of the future services so secured, but upon the gratitude and 
 respect of the testator to the defendant for past services, for having saved 
 his life when in the greatest danger. 
 
 I 
 
 ■ o' 
 
 1 1 Mylne & Keen, 253. ^ 5 Bligh (n.s.) 505; and 7 BUgh (n.s.) 395. 
 
 '■> 1 Sim. 1; and 4 Kuss. 507. ■■ 3 Mylne & Keen, 113. ^ 3 Mylne A Craig, 97.
 
 SECT. IV] DENT V. BENNETT. 665 
 
 It lias been said in many cases, particularly in Bridyman v. Green^, 
 that this Court will not suffer one to take a conveyance for consideration, 
 and afterwards to set it up as a gift. In tliis case, however, both conside- 
 rations are stated upon the agreement itself. Notwithstanding the ground 
 of bargain relied upon in the answer, I consider that consideration so 
 absolutely nominal — for I am not now considering the legality of it — that 
 the agreement must, I think, be looked at as purely voluntary, and as a 
 gratuitous reward for past services. In what way this Court would have 
 dealt with a voluntary and gratuitous contract for such a purpose, if there 
 had been nothing else in the case, it is not necessary to discuss, because 
 there are other circumstances in the case, amply sufficient to support the 
 decree I propose to pronounce. 
 
 What is the case, independently of disputed facts? A medical atten- 
 dant obtains from his patient, eighty-five years of age, an agreement to 
 pay him 2.'i,000^. for services completed two years before, the regular 
 charge for which liad been previously paid ; and this, privately, without 
 the intervention of any third person, and carefully concealed until after 
 the death of the patient. Of such a case it may, at least, be said, in the 
 language of Lord Eldon, in Gibson v. Jeyes', that "those who mcddh; witii 
 such transactions take upon themselves the whole proof tiiat the thing is 
 righteous;" but so far from tlie defendant having succeeded in doing this, 
 the evidence in the cause proves the reverse. 
 
 I must, however, first observe upon a provision in the agreement, 
 strongly proving tliat the testator, if he ever did sign it, had nothing to do 
 with its composition or provisions. It is part of the agreement that the 
 25,000/. shall be paid six months after the testator's death, " independent 
 of any will or wills the said Jonatlian Dent has made or may hereafter 
 make after the date hereof." The reason for getting tlie testator to sign 
 an agreement instead of a testamentary paper for the same purpose is 
 obvious. A testamentary paper, if the testator knew any thing about it, 
 might have been purposely revoked, or, although lie knew nothing about 
 it, might be revoked by any general alteration of any will he might have 
 made ; but why insert this provision into the agreement ? If the testator 
 knew any thing about the matter, it was wholly useless; because, knowing 
 what he had done, and master of what he might afterwards do by his 
 testamentary disposition, it was absurd to introduce this provision into 
 the agreement. But the defendant did not know whether the testator 
 had not left him a legacy in some existing will, and might hope that, 
 ignorant of the contents of this agi'eement, he niigiit do so in some future 
 testamentary paper, and therefore introduced this provision for the purpose 
 of securing to himself all that the testator might give him by will, as well 
 as all that the agreement proposed to secure to him. 
 
 Looking at this agreement as given out of gratitude for past services, 
 the evidence in the cause, as to which there is no question, being 
 1 2 Ves. Sen. 027. - Ves. 206. See p. 270.
 
 666 DENT V. BENNETT. [CHAP. V 
 
 documentary, and applying to periods before and after the date of the 
 agreement, appears to me conclusive to prove that the testator's mind and 
 will were strangers to what that paper contains. It appears that in 1828, 
 just after the services of 1827, under all the influence of that pleasure 
 which may be supposed to arise from the enjoyment of life unexpectedly 
 preserved, and of gratitude to the person by whom the preservation of it 
 had been effected, the testator was so little disposed to shew his gratitude 
 to the defendant liy any extraordinary remuneration, that he caused a 
 communication to be made to him, of the 12th of November, 1828, 
 requesting that he would not continue his visits if he proposed to charge 
 for them; and from his own letter of March, 1828, exhibit R., it appears 
 that he was aware that those who were then acting for the testator had 
 paid the defendant's bill, intending to conceal the amount, which was only 
 40^., from him, the words being, " I told Mr. Dent yesterday you had 
 settled with me, therefore you must make what charge to him you think 
 will do." Again, in February 1829, before the date of the agreement, the 
 testator lent to the defendant 150^., and took Ids own bond for it ; but in 
 18.33, having advanced to him another sum of 150Z., he required his liond, 
 witli three sureties, although the repayment was not to be required for 
 three years and six months, before which time, when the testator, if he 
 lived, would be eighty-nine, it was all but certain that the testator would 
 be dead, and the defendant thei'efore entitled to the 25,000/. under tiie 
 agreement. 
 
 These facts not only exhibit a state of the testator's mind and 
 feelings towards the defendant wholly inconsistent with that exuberance 
 of gratitude and generosity which could alone have rendered the alleged 
 agreement intelligible ; but they prove, which is even more important, a 
 knowledge in the defendant that such was the state of his mind and 
 feelings, and a dealing between him and the te.stator which could not have 
 taken place if the testator had knowingly become a party to the agreement 
 of 1829. 
 
 There is an ab.sence of all evidence of the testator having at any time 
 recognised, or in any manner given any proof of approval of the agreement, 
 or of any consciousness of its existence; but there is evidence of the 
 defendant having, by continuing to charge the testator in his books, acted 
 as if no such agreement existed, or was likely to be carried into effect. 
 
 But what is the defendant's own statement of the circumstances under 
 which this agreement was made ? He says that it was settled and prepared 
 when he was alone with the testator; that from the time when it was 
 signed it was in his own possession, no copy being in the possession of the 
 testator ; and that it was carefully concealed, at the testator's request, as 
 he says, until after the testator's death. It appears that the testator was 
 in tlie habit of employing Mr. Brown, his confidential solicitor, in the 
 most minute transactions, for which purpose he passed several hours with 
 him one day in every week ; and what is the reason alleged for concealing 
 
 I
 
 SECT. IV] DENT V. BENNETT. 667 
 
 this agreement from Mr. Brown 1 Wliy, because Mr. Brown and tlie de- 
 fendant were at variance, and because the defendant was afraid tliat Mr. 
 Brown might exert his influence to his prejudice, the testator being, as it 
 was alleged, much under his control. According, then, to the defendant's 
 own case, the testator was a person so likely to be influenced by another 
 in a matter of so much importance as the disposition of 2.5,000^., that 
 there was danger of his being induced not to give it as he had intended : 
 but if so, was he not also liable to be induced by some means to agree to 
 give it otherwise than he would have done if properly advised 'i 
 
 It was argued, upon the authority of the civil law and of some 
 reported cases, that medical attendants were, upon questions of this kind, 
 within tliat class of persons whose acts, when dealing with their patients, 
 ought to be watched with great jealousy. Undoubtedly they are ; but I 
 will not narrow the rule or run the risk of in any degree fettering the 
 exercise of the lieneficial jurisdiction of tliis Court by any enumeration of 
 the description of persons against whom it ought to be most freely 
 exercised. "The relief," — as Sir S. Eomilly says in his celebrated reply 
 in Huguenin v. Baseley' (from hearing which I received so mucli pleasure 
 
 1 14 Vos. 275. The argument was as follows : — 
 
 " This bill puts the relief it prays directly upon the ground of undue influence, 
 exerted by the means of spiritual ascendancy; distinctly charging, that the defendant 
 had taken upon liimself to be the adviser of tliis lady, and the manager of her property; 
 and stating the letter as an instance of that influence. But, divesting this case of that 
 relation and influence, and considering it as the case of a stranger, the evidence of 
 fi-aud or misapprehension is so strong, that this transaction could not possibly stand. 
 Upon all the evidence it cannot be represented, that, when she executed the deed, she 
 was apprised of its nature. How is her sudden cliange in so short a period, from great 
 anxiety about this estate to be accounted for but from tlic effect of a sort of fascina- 
 tion? Of what consequence was it to Mrs. Huguenin, what rejiairs were to be done, 
 what conditions were to be kept, according to the evidence, ujion the supposition, that 
 she was parting with the estate for ever? The removal of her husband's corpse, to 
 be buried at Hampton Gay, is another circumstance utterly inconsistent with the 
 defendant's representation, that she did not intend to remain the proprietor. Having 
 a mother, a half brother and sister, .she was not at a loss for an object of bounty. The 
 evidence as to her conversation with the attorney, suggesting to her that a will would 
 be revocable by a change of her circumstances, shews that she looked to the possibility 
 of a second marriage. Her expression of satisfaction, at having attained her object, 
 cannot be explained upon the supposition that she was giving away her estate ; but 
 may be accounted for if she was to get rid of the trouble attending it. 
 
 In these cases one of the strongest circumstances is the appearance by one person 
 of consulting only the interest of another, and neglecting his own. The passage in 
 Cicero- is most applicable : " Totius autem injustitia; nulla capitalior est quara oorum, 
 qui, cum maxime fallunt, id agunt, ut viri boni esse videantur." 
 
 The duty imposed upon the defendant by merely undertaking the concerns of this 
 lady, made it impossible for him to take the whole of her estate; for it is not necessary 
 to go the extent, that he could not accept any bounty. He took upon him the entire 
 management of her affairs ; acting as her agent ; receiving her rents ; attending arbi- 
 trations, &c. The rule is not confined to attorneys, or persons entitled to reward. 
 
 3 Cic. de. Off. Lib. i. s. 13.
 
 6G8 DENT V. BENNETT. [CHAP. V 
 
 that the recollection of it has not been diminished by the lapse of more 
 than tliirty years), — "the relief stands upon a general principle, applying 
 
 Proof V. nines' was the ease of a tradesman; who officiously interfered. The relief 
 stands upon a general principle, applying to all the variety of relations, in which 
 .dominion may be exercised by one person over another ; and this case discovers one of 
 a very peculiar nature : influence obtained through the sacred character of a minister 
 of religion. Though there is no case, in which the Court has proceeded upon such 
 grounds, the general principle has prevailed, where the means of acquiring influence 
 were much less powerful: the respect of a child or ward for a parent or guardian. 
 Pothier says that by a latitude of interpretation, proceeding upon principles of public 
 utility, that ordiuance, expressly concerning only a tutor or administrateur, has been 
 extended to the master of a school ; the director of the conscience ; the physician ; 
 who is not permitted dui-ing his attendance to take a conveyance from the patient.; 
 and to other relations, in which authority or influence must be supposed to exist. 
 
 For the proper determination of this case however it is not necessary to rely on 
 such authorities. The decisions of English Courts of Justice are amply sufficient. 
 Tlie same doctrine, stated byyom Lordsliip in Hatch v. //aVcft-, was laid down by Lord 
 Chief .Justice Wihnot in Bridgmaii v. (rrecn^. There was in that case much evidence 
 that the person was perfectly aware of what he was doing ; and had repeatedly con- 
 firmed it. Upon that Lord Chief Justice Wilmot's observation is, that it only tends to 
 shew more clearly the deep-rooted influence obtained over him''. " In cases of forgery, 
 instructions under the hand of the person, whose deed or will is supposed to be forged, 
 to the same effect as the deed or will are very material ; but in cases of undue in- 
 fluence and imposition they prove nothing : for the same power, which produces one, 
 produces the other ; and therefore, instead of removing such an imputation, it is rather 
 an additional evidence of it." 
 
 Having before^ mentioned the distinction of the Roman Law between liberality and 
 profusion, he says, our laws strike no such boundary: " stat pro ratione voluntas, is the 
 law with us ; " and this Court never did, nor ever will annul donations merely as being 
 improvident, and such as a wise man would not have made, or a man of very nice 
 honour have accepted : nor will this Court measure the degrees of understanding ; and 
 say, that a weak man, provided he is out of the reach of a commission, may not give 
 as well as a wise man. But, though this Court disclaims any such jurisdiction, yet 
 where a gift is immoderate, bears no proportion to the cncumstanees of the giver, 
 where no reason appears, or the reason given is falsified, and the giver is a weak man, 
 liable to be imposed upon, this Court will look upon such a gift with a very jealous 
 eye ; and very strictly examine the conduct of the persons, in whose favour it is made ; 
 and, if it sees, that any arts or stratagems, or any undue means, have been used, if it 
 sees the least speck of imposition at the bottom, or that the donor is in such a 
 situation with respect to the donee as may naturally give an undue influence over him, 
 if there be the least scintilla of fi-aud, this Court will and ought to interpose; and by 
 the exertion of such a jurisdiction they are so far from infringing the right of aliena- 
 tion, which is the inseparable incident of property, that they act upon the principle of 
 seoiuring the full, ample, and uninfluenced, enjoyment of it. 
 
 The ground, as between guardian and ward is put upon the danger either of in- 
 ducing guarilians to flatter the passions of their wards, or of the improper exercise of 
 their authority ; as the relation of husband and wife is guarded from the effects both of 
 indulgence and severity. 
 
 If this reasoning has any weight, does not the principle apply with infinitely greater 
 
 force to the present case? What is the authority of a guardian, or even parental 
 
 authority, what are the means of influence by severity or indulgence in such a relation, 
 
 ' Ante, 659. « 9 Ves. 292. ^ 2 Ves. 627; Wihn. 58. 
 
 ^ Wilm. 70. 5 wilm. CO, 61.
 
 SECT. IV] DENT V. BENNETT. OGD 
 
 to all the variety of relations in whicli dominion may be exercised l)y one 
 person over anotiier;" and wlien T find an agreement, so extravagant in 
 its provisions, secretly obtained by a medical attendant from his patient 
 of a very advanced age, and carefully concealed from his professional 
 advisers and all other persons, and have it proved that the habits, views, 
 and intentions of the testator were wholly inconsistent ^\dth thost; pro- 
 visions, I cannot but come to the conclusion that the medical attendant 
 did obtain it by some dominion exercised over his patient. How it was 
 eflected, whether by direct fraud, or by what other means, the defendant 
 has, by the secrecy of the transaction, prevented my having any direct 
 testimony. By that he cannot profit ; the conclusion being, I think, 
 satisfactorily established. 
 
 It was, indeed, argued that the relation of medical attendant and 
 patient had ceased, before the date of the agreement, by that ^■ery notice 
 to discontinue his visits, to which I have before adverted. The relation 
 does not cease because the patient has not medicine actually administered 
 to him at the time, any more than the relation of attorney and client 
 ceases because no suit may be actually in progress. If it were otherwise, 
 I do not know that it would have made any difference ; but I think that 
 the existence of the relation of medical attendant and patient is not only 
 proved l)y the evidence, but by the very agreement itself. 
 
 Tlie Vice-Chancellor has expressed a sti'ong opinion as to the illegality 
 of the agreement in point of law. I abstaui from saying any thing upon 
 that subject ; because, if that had been the only question in the cause, I 
 should probably have permitted the action to proceed, according to tiie 
 principle upon which I acted in Su»2)son v. Lo/'d Ifowden'. But as I am 
 of opinion that there are grounds for the interposition of this Court, quite 
 independent of the question whether the agreement be illegal upon tiie 
 face of it, and therefore void at law, that case has no application to the 
 present. 
 
 For a similar reason, I abstain from examining the evidence as to 
 whether the testator did or did not sign tlie alleged agreement ; because, 
 if tlie case was, in my opinion, to tui'n upon that, I should have left that 
 
 compared with the power of religious impressions under the ascendency of a spiritual 
 adviser ; with such an engine to work upon the passions; to excite superstitious fears 
 or pious hopes; to insinre, as the object may be best promoted, despair or contidenee; 
 to alarm the conscience by the horrors of eternal misery, or support the drooping 
 spirits by unfolding the prospect of eternal happiness : that good or evil, which is 
 never to end? What are all other means to these? Are inferior considerations to 
 have so much effect ; and is no regard to be given to the most powerful motive, that 
 can actuate the human mind? Though no direct authority is produced, your Lordship, 
 dispensing justice by the same rule as your predecessors, upon such a subject not con- 
 fined within the narrow limits of precedent, will, as a new relation appears, look into 
 the principles, that govern the human heart; and decide in a case, far the strongest, 
 that has yet occurred, upon this ground alone, from its infinite importance to the 
 community." Ed. 
 
 1 3 Myhie & Craig, 97.
 
 670 BUTTON V. THOMPSON. [CHAP. V 
 
 to tlie decision of a jury. I cannot, however, but observe upon the 
 inconsistency between the statements in the defendant's answer and tliose 
 of Iiis only material witness, Crowder. The defendant says that a maid- 
 servant opened the door on the 15th of September; and, after stating 
 wliat passed in the presence of Crowder, says that he had set forth all that 
 took place : but Crowder, making liis deposition at a subsequent period, 
 says that the testator himself opened the door on the 15th, and that the 
 defendant said to him, after the agreement had been signed, that it was a 
 20,000 pounder. It was argued that Crowder ought to be believed in 
 saying this, because he has declined identifying the agreement. It is, 
 however, to be observed, that the fact to which he has declined to swear is 
 capable of being disproved by living witnesses, and several have given 
 testimony for that purpose ; but those two facts to wliich he has sworn, 
 being stated to have passed in the presence only of the testator, who is 
 dead, and of the defendant, no danger to himself could arise from his 
 evidence, though it should not be true. 
 
 My judgment, liowever, does not proceed upon the ground, that tlie 
 agreement was not signed by the testator, or tliat it is illegal, and 
 therefore void upon the face of it : but upon this, that I am satisfied, from 
 the internal evidence afforded by the document, and from other facts as to 
 which there i.s no dispute, that the testator never did agree to, or intend 
 to direct, what in that paper he is represented as agreeing to and directing; 
 and tliat his signature to that paper, if he ever did sign it, must have been 
 olstained by fraud, or under such circumstances as render it the duty of a 
 court of equity to protect the party signing it, and his estate, from being 
 prejudiced by it. 
 
 I therefore make the decree prayed for, with costs. 
 
 BUTTON V. THOMPSON. 
 
 In the Court of Appeal, March 16, 1883. 
 
 [Reported in Law Reports, 23 Chancery Division., 278.] 
 
 J. Thompson, by his will, dated the l.'Jtli of February, 1867, gave his 
 residuary real and personal estate to four trustees, of whom the defendant, 
 John Thompson, was one, upon trust to convert the same into money, and 
 to hold the proceeds in trust for his wife for life, and after her death to 
 divide the same into nine equal parts, one of which shares he gave to the 
 children of his deceased daughter, Sarah Button, in equal shares. And 
 the testator provided that the trustees should have power to withhold the 
 portions bequeathed to the children of Sarah Button till they respectively 
 attained the age of twenty-five years. The testator died in June, 1867.
 
 SECT. IV] BUTTON V. THOMPSON. 671 
 
 The plaintifi', C. E. Button, was one of the tlireo uliiUlrou of Sarnli Button, 
 and so became entitled to one twenty-sevcntli part of the residuary estate. 
 
 Tlic plaintiff attained his age of twenty-live years on the 2.5111 of 
 January, 1882. 
 
 The defendant, John Thompson, considering that the plaintiff, who was 
 his nephew, was a young man of improvident habits, prepared a voluntary 
 settlement for his execution, after consulting the plaintiff's father and 
 step-mother. This settlement was first tendered to the plaintiff' for execu- 
 tion in the month of July, 1879, but he then refused to execute it; but 
 subsequently, in July, 1881, he was persuaded by the defendant to do so. 
 The settlement bore date the 2nd of July, 1881, and was expressed to be 
 made between the plaintiff of the one part and the defendants John 
 Thompson and John WilUam Thompson of the other part, and the plaintiff 
 thereby assigned all his interest in the residuary estate of the testator, 
 John Thompson, to the defendants John Thompson and J. W. Thompson 
 upon trust to invest the same and to hold the investments in trust for such 
 persons and for such estates and generally in such manner as the plaintiff 
 should, with the consent of the said trustees, by any deed appoint (the 
 granting of such consent to be in the absolute discretion of the said 
 trustees), and subject to such power of appointment in trust to pay the 
 income to the plaintiff during his life, and after his death to his children 
 and issue as therein mentioned, and in default of such issue in trust for 
 the plaintiff's stepmother if tlien living, and if she sliould be dead, then in 
 trust for the plaintiff's next of kin according to the Statute of Bistribu- 
 tions. 
 
 The father and stepmother of the plaintiff disclaimed all interest under 
 the settlement. 
 
 J. W. Thompson did not execute the settlement or accept the trusts. 
 
 On the 30th of March, 1882, the plaintiff commenced the present 
 action in the Chancery Court of the Buchy of Lancaster against the 
 defendant John Thompson and the plaintiff's father and stepmother 
 claiming that the settlement should be set aside and cancelled on the 
 grounds that liis signature to the settlement had been procured by undue 
 influence, that he did not understand the effect of it, and that he had no 
 independent legal ad\'ice. 
 
 The defendant John Thompson in his defence stated that the plaintifi' 
 was of improvident habits and was in the receipt of weekly wages only, 
 and was not, in the defendant's opinion, likely to be successful in any 
 business or profession, and the defendant was therefore desirous, in 
 furtherance of the expressed wishes of his father and stepmother, that he 
 should make a settlement of the property devolving upon him under the 
 will of the testator. The defendant also stated that he had no object in 
 view but the benefit of the plaintiff, and he denied that any undue 
 influence had been used, or that the plaintifi' did not understand the efiect 
 of the deed.
 
 672 DUTTON V. THOMPSON. [CHAP. V 
 
 At tlio trial the plaintiff swore that before the settlement was tendered 
 to hiui in 187!) ho had heard nothing about it, that he did not know the 
 amount of the property coming to him under the will ; that when he signed 
 the deed in 1881 he did not understand the effect of it on his position 
 with respect to the property ; that he believed that under his grandfather's 
 will he liad no power of drawing the capital, and that he did not know his 
 rights under the will till after he had signed the settlement. The 
 plaintiff had no independent legal advice at the time when he executed the 
 settlement. 
 
 On the other hand the defendant swore that the settlement was read 
 over to the plaintiff and explained to him when it was tendered to him in 
 1879, and also in July, 1881, when he executed it. 
 
 Under these circumstances Mr. H. F. Bristowe, the Vice-Chancellor of 
 the Duchy of Lancaster, gave judgment to set aside the settlement, and 
 ordered the defendant John Thompson to pay the plaintiff's costs. 
 
 From this judgment the defendant appealed. 
 
 Kekeuyicli, Q.C., and Clare, for the appellant : — 
 
 Tlie settlement is a reasonable one considering the disposition and 
 circumstances of the plaintiff; but whatever the provisions are it must be 
 upheld if the plaintiff understood what he was doing when he executed it : 
 rhillips V. Midlings\ The evidence shews that the plaintiff did under- 
 stand the effect of the settlement. The matter was put fairly before him 
 both in 1879, when he refused to execute the settlement, and in 1881, and 
 it was read over and explained to him on both occasions. 
 
 If the settlement is set aside, the order making the defendant pay the 
 costs is erroneous. Tlie defendant acted throughout for the beneKt of the 
 plaintiH', and is entitled to his costs as trustee. No improper conduct 
 being proved against him liis right to the costs is a matter of contract, and 
 is not within the discretion of the Judge. The defendant is therefore 
 entitleil to appeal on that ground : Evmlt v. Everitl"; Turner v. Hancock'. 
 
 liiijliij-, Q.C., and Pankhurat, for the plaintiff, were not called upon. 
 
 Jessel, M.R.: — 
 
 This appeal involves two points. First, whether the deed which is im- 
 peached can stand, and whether consequently the trustee can succeed on 
 that ground ; and secondly, whether if the deed is set aside the trustee 
 can appeal against the order of the Court that he should pay the costs. 
 As to the first point, I think that the deed cannot stand, on the ground 
 alleged in the statement of claim, namely, that the plaintiff did not under- 
 stand it. 1 emphatically disagree with the ground on which some Judges 
 have set aside voluntary settlements, namely, that there were provisions in 
 them which were not proper to be inserted in such settlements. It is not 
 the province of a Court of justice to decide on what terms or conditions a 
 man of competent understanding may choose to dispose of his property. If 
 
 ' Law Bep. 7 Ch. 244. ^ Law Bep. 10 Eq. 405. ^ 20 Ch. D. 303.
 
 HKCT. IV] DUTTON V. THOMI'SUN. G73 
 
 lie thoroughly understands what he is about, it is not the duty of a Court 
 of justice to set aside a settlement which he chooses to execute on the 
 ground that it contains clauses wiiich are not proper. No doubt if the 
 settlement were shewn to contain provisions so absurd and improvident 
 that no reasonable person would have consented to them, or if provisions 
 were omitted that no reasonable person would have allowed to be omitted, 
 that is an argument that he did not understand the settlement. But in 
 no other way would it be a reason for setting it aside. In this case I 
 cannot avoid seeing that the defendant acted throughout for what he con- 
 sidered to be for the benefit of the plaintiff', and, so far as I am concerned, 
 I should not have ordered him to pay the costs of the action. But the 
 question we have before us is not whether the defendant's motives were 
 good or bad, but whether the plaintiff understood the deed. The evidence 
 convinces me that every one thought the plaintiff was very weak minded. 
 I do not mean to say that they thought he was sufficiently so to make him 
 a lunatic, but they thought he had not that full enjoyment of his faculties 
 which average persons have. That is quite plain to me from the evidence. 
 He was a man of full age, he had been employed as a merchant's clerk, 
 but you cannot read the evidence without seeing that in the whole trans- 
 action they treated him as a baby, and not as a man of average intellect. 
 It is clear that having that opinion the defendant ought to have taken 
 unusual precautions to guard the settlement from any suspicion. 
 
 Now when we look at the evidence on the point which was given by 
 the plaintiff in the witness-box, although he admitted that he understood 
 the settlement to some extent, it is clear from his answers that there was 
 much that he did not understand, and in particular he did not know the 
 amount of the property to be settled. In my opinion there was a special 
 obligation on the part of the defendant to see that the plaintifl" understood 
 the settlement, which obligation he has not discharged. 
 
 People who prepare settlements for their nephews must shew clearly 
 that their nephews understood them when they executed them. In the 
 case of this settlement I am clearly of opinion that the plaintifi" did not 
 understand half of it. Therefore the judgment of the Vice-Chancellor as 
 to setting aside the settlement is right. 
 
 With respect to the costs, I should not have made this good-natured 
 uncle pay the costs ; but the Vice-Chancellor had a discretion, and though 
 the defendant has received hard measure I cannot see how he can have 
 any appeal from the Vice-Chancellor's discretion. He has appealed from 
 the whole of the judgment, and he cannot, according to the practice of the 
 Court, obtain a reversal of the order as to costs unless he succeeds in 
 varying the judgment in a material part. 
 
 It is said that the defendant can appeal as to the cost on the ground 
 
 that he is a trustee. But he is only a trustee if the deed is established : 
 
 he is not a trustee if the deed is set aside. There is no contract in 
 
 existence under which he can claim his costs as of right. I regret it, but 
 
 F. 43
 
 674 DUTTON V. THOMPSON. [CHAP. V 
 
 I can come to no other conclusion tlian tliat the appeal must be altogether 
 dismissed. 
 
 Cotton, L. J. : — 
 
 This is an appeal from a judgment of the Vice-Chancellor of the Duchy 
 of Lancaster ordering the deed to be set aside, and the defendant to pay 
 the plaintiff's costs of the action. 
 
 It was admitted that the object of tlie defendant in appealing against 
 the whole judgment is to get the order reversed as to the payment of 
 costs. He has a right to do this ; but he further contends that even if he 
 should not succeed in reversing the order to set aside the settlement we 
 could still entertain the question whether or not he should have been 
 ordered to pay the costs. The appellant is trustee of this settlement. 
 No doubt a trustee is entitled to costs of an action which is brought for 
 the administration of the tnists. But this claim is adverse to the settle- 
 ment, and the plaintiff does not claim under the settlement but against it. 
 
 Therefore this rule has no appKcation. I must say for myself that I 
 see no ground for imputing unworthy motives to the defendant in getting 
 this settlement executed, or in procuring the insertion of any particular 
 provisions. But if he is in the wrong, and the settlement is set aside, we 
 cannot properly interfere with the order of the Judge as to costs. It is a 
 matter within the discretion of the Vice-Chancellor. 
 
 Then we come to the question whether the judgment of the Vice- 
 Chancellor setting aside the settlement can be disturbed. In my opinion 
 it cannot. Many cases where settlements have been impeached have 
 turned upon the question whether they contained proper clauses having 
 regard to the position of the settlor. Where the contest is between the 
 settlor and persons claiming adversely to him different considerations 
 apply, and it may be right to consider that question. But where the 
 claim, as here, is against the trustees of the settlement, and not against 
 any other persons, we ought not, in my opinion, to go into the question 
 whether the provisions inserted were proper, but only whether the settlor 
 really understood the settlement which he executed. This is the question 
 in this case. I do not mean only whether he read it over, but did he 
 know how his position under his grandfather's will would be affected by 
 it ? If he did not I cannot doubt that it is the duty of this Court to relieve 
 him from it. On considering the whole of the evidence I cannot come to 
 any other conclusion tlian that the plaintiff did not understand the settle- 
 ment, and therefore the appeal must fail. 
 
 LiNDLEY, L. J. : — 
 
 I am of the same opinion. I have attended closely to the evidence, 
 and my conclusion is that the plaintiff did not understand the settlement. 
 It was no doubt read over to Iiim, but it was not fully explained to him. 
 I cannot help coming to the conclusion that he did not realise the effect of
 
 SECT. IV] DUTTON U. TilOMl'SON. G75 
 
 tlie settlement on tlie interest which he took under the will. 1 do not 
 think he knew the amount settled, nor the extent to which he was put 
 under the power of tlie trustee, nor that the property would eventually go 
 to his step-mother. In my opinion it is impossible that this deed can 
 stand. 
 
 As to the costs, I Ijelieve that the defendant tiiought he was doing the 
 best for his nephew ; but still it was by him and the plaintift's step-mother 
 that the whole thing was brought about. At all events, the costs were in 
 the Judge's discretion, and we cannot interfere with his order. 
 
 43—2
 
 CHAPTER VI. 
 
 UNLAWFUL AGEEEMENTS. 
 
 FETHERSTON v. HUTCHINSON. 
 
 In tue King's Bench, Michaelmas Term, 1590. 
 
 [Reported in Groke Elizabeth, 199.] 
 
 Assumpsit, and declares. That whereas the plaintiff had taken the body 
 of one H. in execution at the suit of J. S. by virtue of a warrant directed 
 to liim as special bailiff; tlie defendant in consideration he would permit 
 him to go at large, and of two shillings to the defendant paid, &c., promised 
 to pay the plaintiff all the money in which H. was condemned. And 
 upon assumpsit it was found for the plaintiff ; and it was moved in arrest 
 of judgment, that the consideration is not good, being contrary to the 
 Statute of 23 H. 6, and that a promise and obligation was all one. 
 And though it be joined with another consideration of two shillings, yet 
 being void and against the statute for part, it is void in all. 
 
 COLLINS V. BLANTERN. 
 
 In the Common Pleas, Easter Term, 1767. 
 
 [Reported in 2 Wilson, 341.] 
 
 [In this case, which is also reported at length in the first volume of 
 Smith's Leading Cases, it appeared that five persons stood indicted on 
 the prosecution of one Jolui Rudge for perjury ; that an agreement was 
 entered into between John Rudge, the plaintiff Collins, and the five 
 persons indicted, by whicli tlie plaintiff Collins was to give a promissory 
 note for 350?. to Rudge as a consideration for Rudge's not appearing to
 
 CHAP. VI] COLLINS V. BLANTERN. G77 
 
 give evidence as prosecutor on the trial ; and that two of the persons so 
 indicted together with BLantern, the defendant, were to give to Collins a 
 bond for 700/. to ideninify liim against the note. It also appeared tliat 
 Collins had given Rudge the promissory note, and that the bond had 
 been delivered to Collins according to the term of the agreement. Collins 
 sued Blantern on the bond. The defendant pleaded first, non est factum ; 
 and secondly the facts, together with an averment that the bond was void, 
 and an allegation that the promissory note was still unpaid. Ed.] 
 
 Lord Chief Justice Wilmot delivered the opinion of the Court and 
 pronounced judgment for the defendant to the following effect : 
 
 Four questions are to be considered : 
 
 1st. Whether it doth not appear from the facts alleged in the second 
 plea, that the consideration for giving the bond is an illegal consideration^ 
 
 2nd. Whether a bond given for an illegal consideration is not clearly 
 void at common law ab initio? 
 
 3rd. Supposing the bond is void, wliether the facts disclosed in the 
 plea to shew it void, can by law be averred and specially pleaded 1 
 
 4th. If they can be pleaded : then whether this second plea is duly, 
 aptly, and properly pleaded 1 
 
 1 . As to the first question, it hath been insisted for the plaintiff tliat 
 lie was not privy to the bargain and agreement, so, as to him there appears 
 to be nothing illegal done by him. But we are all clearly of opinion, that 
 the whole of the transaction is to be considered as one entire agreement ; 
 for the bond and note are both dated upon the same day, for payment of 
 the same sum of money on the same day ; the manner of the transaction 
 was to gild over and conceal the truth ; and whenever courts of law see 
 such attempts made to conceal such wicked deeds, they will brush away 
 the cobweb varnish, and shew the transactions in their true light. This 
 is an agreement to stifle a prosecution for wilful and corrupt perjury, a 
 crime most detrimental to the commonwealth ; for it is the duty of eveiy 
 man to prosecute, appear against, and bring offenders of this sort to 
 justice. Many felonies are not so enormous oflences as perjury, and 
 therefore to stifle a prosecution for perjury seems to be a greater offence 
 than compounding some felonies. The promissory note was certainly 
 void ; what right tlien hath the plaintiff" to recover upon this bond, which 
 was given to indemnify him from a note that was void t Tliey are both 
 bad, the consideration for giving them being wicked and unlawful. 
 
 2. As to the second point, we are all of opinion that the bond is void 
 ab initio, by the common law, by the civil law, moral law, and all laws 
 whatever ; and it is so held by all writers whatsoever upon tliis suliject, 
 except in one passage in Urotius, lib. 2, cap. 11, sect. 9, where I tiiink he 
 is greatly mistaken, and differs from Puffendorf, lib. 3, cap. 8, sect. 8, who, 
 in my opinion, convicts the doctrine of Grotius. In Justin. Instit. lib. 3, 
 tit. 20, de turpi causa, sect. 23. Quod turpi ex causa proniissuni est, 
 veluti si quis homicidium vel sacrilegium se facturum promittat, non \alet.
 
 678 COLLINS V. BLANTERN. [CHAP. VI 
 
 And Vinnius, in liis commentary, carries it so far as to say, you shall not 
 stipulate or promise to pay money to a man not to do a crime. Si quis 
 pecuniam proniiserit, ne furtum aut coedem faceret, aut sub conditione, si 
 non fecerit, adhuc dicendum stipulationem nullius esse momenti ; cum hoc 
 ipsum flaccitiosum est, pecuniam pacisci quo flagitio abstineas. Dig. lib. 1, 
 tit. 5. Code, lib. 4, tit. 7, to the same point. 
 
 This is a contract to tempt a man to transgress the law, to do that 
 which is injurious to the community : it is void by the common law ; and 
 the reason why the common law says such contracts are void, is for the 
 pulilic good. You shall not stipulate for iniquity. All writers upon our 
 law agree in this, no polluted hand sliall touch the pure fountains of 
 justice. Whoever is a party to an unlawful contract, if he hath once paid 
 the money stipulated to be paid in pursuance thereof, he shall not have the 
 help of a court to fetch it back again, you shall not have a right of action 
 when you come into a court of justice in this unclean manner to recover it 
 back. Procul, O ! procul est profani. See Doct. ife Stud. fo. 1 2. and 
 chap. 24. 
 
 3. The third point is, Whether this matter can be pleaded '? It is 
 objected against the defendant that he has no remedy at law, but must 
 go and seek it in a court of equity : I answer, we are upon a mere point 
 of common law, which must have been a question of law long before courts 
 of equity exercised that jurisdiction which we now see them exercise ; a 
 jurisdiction which never would have swelled to that enormous bulk we now 
 see, if the judges of the courts of common law had been anciently as liberal 
 as they had been in later times ; to send the defendant in this case into a 
 court of equity, is to say there never was any remedy at law against such 
 a wicked contract as this is : we all know when the equity part of the 
 Court of Chancery began. I should have been extremely sorry if this case 
 had been without remedy at common law. Est boni judicis ampliare juris- 
 dictionem : and I say, est boni judicis ampliare justitiam ; therefore, 
 whenever such cases as this come before a court of law, it is for the public 
 good that the common law should reach them and give relief. I have 
 always thought that fonnerly there was too confined a way of thinking in 
 the judges of the common law courts, and that courts of equity have risen 
 ^y the judges not properly applying the principles of the common law, but 
 being too narrowly governed liy old cases and maxims, which have too 
 much prevented the public from having the benefit of the common law. 
 It is now objected as a maxim, that the law will not endure a fact in pais 
 dehors a specialty to be averred against it, and that a deed cannot be 
 defeated by any thing less than a deed, and a record by a record, and that 
 if there be no consideration for a bond it is a gift. I answer, that the 
 present condition is for the payment of a sum of money, but that payment 
 to be made was grounded upon a vicious consideration, which is not 
 inconsistent with the condition of the bond, but strikes at the contract 
 itself in such a manner as shews, that, in truth, the bond never had any
 
 CHAP. VI] HOLMAN V. JOHNSON. 679 
 
 legal entity, and if it never had any lieing at all, then the rule or maxim 
 that a deed must be defeated by a deed of e(^ual strength doth not apply 
 to this case. The law will legitimate the shewing it void ab initio, and 
 this can only be done by pleading. Nothing is due under such a contract, 
 then the law gives no action, tlie debitum never existed ; as mucli as if it 
 had been said it shall be void because there is no debt ; but if this wicked 
 contract be not pleadable, it wll be good at law, be sanctified thereby, and 
 liave the same legal operation as a good and an lionest contract, which 
 seems to be most unreasonable and unrighteous, and therefore, unless I am 
 cliained down by law to reject this plea, I will admit it, and let justice 
 take place. What strange absurdity would it be for the law to say that 
 this contract is wicked and void, and in the same breath for tlie law to 
 say. You shall not be permitted to plead the facts which clearly shew it to 
 be wicked and void ' ! 
 
 HOLMAN V. JOHNSON. 
 
 In the King's Bench, July, 1775. 
 
 [Reported in 1 Coioper, 341.] 
 
 Assumpsit for goods sold and delivered : Plea non assumpsit and 
 verdict for the plaintiff. Upon a rule to shew cause why a new trial 
 should not be granted. Lord Mansfield reported the case, which was 
 shortly this : The plaintiff who was resident at, and an inhaliitant of, 
 Dunkirk, together wth his partner, a native of that place, sold and 
 delivered a quantity of tea, for the price of which the action was brouglit, 
 to the order of the defendant, knowing it was intended to be smuggled by 
 him into England : they liad, however, no concern in tlie smuggling scheme 
 itself, l)ut merely sold this tea to him, as they would have done to any 
 other person in the common and ordinary course of their trade. 
 
 Mr. Mansfield, in support of the rule, insisted, that the contract for the 
 sale of this tea being founded upon an intention to make an illicit use of 
 it, which intention and purpose was with the privity and knowledge of tlie 
 plaintiff, he was not entitled to the assistance of the laws of this country 
 to recover the value of it. He cited Huberus 2 vol. 538, 5.39, and Robin- 
 son V. Bland^, to shew that the contract must be judged of by tlie laws of 
 this country, and consequently that an action for the price of tiie tea 
 could not be supported here. 
 
 1 The remaicder of the judRtnent on the third question and the jridfrncnt on the 
 fourth question are omitted. En. 
 
 - 2 Burr. 1077, R.c. 1 Black. Rep. 2.S1, 2.';(;.
 
 680 HOLMAN V. JOHNSON. [CHAP. VI 
 
 Mr. Dunning, Mr. Davenport, and Mr. Buller, contra, for the plaintiff", 
 contonded, that the contract being complete by the delivery of the goods 
 at Dunkirk, where the plaintiff might lawfully sell, and the defendant 
 lawfully buy, it could neither directly nor indirectly be said to be done in 
 violation of the laws of this country ; consequently it was a good and 
 valid contract, and the plaintiff entitled to recover. It was of no moment 
 or concern to the plaintifl' what the defendant meant to do with the tea, 
 nor had he any interest in the event. If he had, or if the contract had 
 been that the plaintiff should deliver the tea in England, it would have 
 been a different question ; but there was no such undertaking on his part. 
 They pressed the argument ab inconvenienti, and cited several cases. 
 MSS. at Ni. Pri. before Lord Mansfield, sittings in London. — An action 
 brought by the plaintiffs, who were lace-raerchants in Paris, for laces 
 (which were contraband in this country) sold and delivered to the de- 
 fendant's order at Calais. The question made was. Whether the vendor 
 of contraband goods at Paris was not bound to run the risk of their 
 being smuggled into this country 1 But Lord Mansfield held, that as 
 the contract on the part of the plaintiff was complete by his delivering 
 the laces at Calais, he was cleai'ly entitled to recover, and the jury 
 found a verdict accordingly. — Faikney v. Reynous and Richardson, East. 
 7 Geo. 3, B. R. since reported in 4 Burr. 2069, & 1 Black. 6.33, where one 
 partner in a stock-jobbing contract lent the other 1.500^. to pay his 
 moiety of the differences on the rescounter day ; and though this was 
 pleaded to the bond, the court upon demurrer over-ruled the plea, 
 and held the plaintiff was entitled to recover. Bruston v. Clifford, in 
 Chan, before Lord Camden, 4th December, 1767. Alsibrook v. Ihdl in 
 C. B. where money paid for the defendant for a gaming debt was held 
 recoverable by the plaintiff. 
 
 Lord Mansfield. There can be no doubt, but that every action 
 tried here must be tried by the law of England ; but the law of England 
 says, that in a variety of circumstances, with regard to contracts legally 
 made abroad, the laws of the country where the cause of action arose 
 shall govern. There are a great many cases which every country says 
 shall be determined by the laws of foreign countries where they arise. 
 But I do not see how tlie principles on which that doctrine obtains are 
 applicable to the present case. For no country ever takes notice of the 
 revenue laws of another'. 
 
 The objection, that a contract is immoral or illegal as between 
 plaintiff and defendant, sounds at all times very ill in the mouth of the 
 
 ' Eeferring to this passage, Mr. Pollock, I'rinciples of Contract, 4th edit. p. 282, 
 remarks that as a general proposition it is strongly disapproved by most modern writers 
 as contrary to reason and justice ; and he cites Kent, Coram. 3, 203— 2G0 ; Wharton, 
 Conflict of Laws, §§ 484—5 ; and Westlake on Private International Law (1880), pp. 
 231, 238. Ed.
 
 CnAP. Vl] HOLMAN V. JOHNSON. 681 
 
 defendant. It is not for tiis sake, liowevor, that the objection is ever 
 allowed ; but it is founded in general principles of policy, which the 
 defendant has the advantage of, contrary to the real justice, as between 
 him and the plaintiff, by accident, if I may so say. The principle of 
 public policy is this : ex dole malo non oritur actio. No court will lend 
 its aid to a man wlio founds his cause of action upon an innnoral or 
 an illegal act. If, from the plaintiff's own stating or otherwise, the 
 cause of action appears to arise ex turpi causa, or the transgression of 
 a positive law of this country, there the Coui-t says he has no right to 
 be assisted. It is upon that ground the Court goes ; not for the sake 
 of the defendant, but because they will not lend their aid to such a 
 plaintiff. So if tlie plaintiff and defendant were to change sides, and the 
 defendant was to bring his action against the plaintiff', the latter would 
 tlien have tlie advantage of it ; for where both are equally in fault, potior 
 est conditio defendentis. 
 
 The question tlierefore is, Wliether, in this case, the plaintiff's demand 
 is founded upon the ground of any immoral act or contract, or upon the 
 ground of his being guilty of any thing which is prohibited by a positive 
 law of this country. An immoral contract it certainly is not ; for the 
 revenue laws themselves, as well as the offences against them, are all 
 positivi juris. What then is the contract of the plaintiff? It is this: 
 being a resident and iniiabitant of Dunkirk, together with his partner, who 
 was born there, he sells a quantity of tea to the defendant, and delivers it 
 at Dunkirk to the defendant's order, to be paid for in ready money tliere, 
 or by bills drawn personally upon him in England. This is an action 
 brouglit merely for goods sold and delivered at Dunkirk. Where tlien, or 
 in what respect is the plaintiff guilty of any crime 1 Is there any law of 
 England transgressed by a person making a complete sale of a parcel of 
 goods at Dunkirk, and giving credit for them 1. The conti'act is complete, 
 and nothing is left to be done. The seller, indeed, knows what the buyer 
 is going to do with the goods, but has no concern in the transaction itself. 
 It is not a bargain to be paid in case the vendee should succeed in landing 
 the goods ; but the interest of the vendor is totally at an end, and his con- 
 tract complete by the delivery of the goods at Dunkirk. 
 
 To wliat a dangerous extent would this go if it were to be held a crime. 
 If contraband clothes are bought in France, and brought liome liither ; or 
 if glass bought abroad, whicli ought to pay a great duty, is run into 
 England ; shall tlie French tailor or the glass-manufacturer stand to the 
 risk or loss attending their being run into England 1 Clearly not. Debt 
 follows the person, and may be recovered in England, let the contract of 
 debt be made where it will ; and the law allows a fiction for the s.ake 
 of expediting the remedy. Therefore, I am clearly of opinion, that the 
 vendors of these goods are not guilty of any otl'ence, nor liavc; tliey trans- 
 gressed against the provisions of any act of parliament. 
 
 I am very glad tlie old books have been looked into. The doctrine
 
 682 PEARCE V. BROOKS. / [CHAP. VI 
 
 Huberus lays down, is founded in good sense, and upon general principles 
 of justice. I entirely agree with him. He puts the general case in ques- 
 tion, thus : Tit. de conflictu legiim, vol. 2, pag. 539, " In certo loco merces 
 qu.-edam prohibitie sunt. Si vendantur ibi, contractus est nullus. Verum, 
 si merx eadem alilji sit vendita, ubi non erat interdicta, emptor condemna- 
 bitur, quia, contractus inde ab initio validus fuit." Translated, it might 
 be rendered thus : In England, tea, which has not paid duty, is prohibited ; 
 and if sold there tlie contract is null and void. But if sold and delivered 
 at a place where it is not prohibited, as at Dunkirk, and an action is 
 brought for the price of it in England, the buyer shall be condemned to pay 
 the price ; because the original contract was good and valid. — He goes on 
 thus : " Verum si merces venditffi in altero loco, ubi prohibits sunt essent 
 tradendic, Jam non fieret condemnatio, quia repugnaret hoc juri et eom- 
 modo reipublica; qufe merces prohibuit." Apply this in the same manner. 
 But if the goods sold were to be delivered in England, where they are pro- 
 hibited ; the contract is void, and the buyer shall not be liable in an action 
 for the price, because it would be an inconvenience and prejudice to the 
 state if such an action could be maintained. 
 
 The gist of the whole turns upon this; that the conclusive delivery was 
 at Dunkirk. If the defendant had bespoke the tea at Dunkirk to be sent 
 into England at a certain price ; and the plaintiff had undertaken to send 
 it into England, or had had any concern in the running it into England, he 
 would have been an offender against the laws of this country. But 
 upon the facts of the case, from the first to the last, he clearly has of- 
 fended against no law of England. Tlierefore, let tlie rule for a new trial 
 be discharged. 
 
 The three other ptdges concurred. 
 
 PEARCE AND ANOTHER v. BROOKS. 
 In the Exchequer, April 17, 1866. 
 
 [Reported in Law Reports, 1 Exchequer, 213.] 
 
 Declaration stating an agreement by which the plaintiffs agreed to 
 supply the defendant with a new miniature brougham on hire, till the 
 purchase money should be paid by instalments in a period which was not 
 to exceed twelve months ; the defendant to have the option to purchase as 
 aforesaid, and to pay 50?. down ; and in case the brougham should be 
 returned before a second instalment was paid, a forfeiture of fifteen 
 guineas was to be paid in addition to the ROL, and also any damage, 
 except fair wear. Averment, that the defendant returned tlie brougham
 
 CHAP. VI] PEARCE V. BROOKS. 683 
 
 before a second instalment was paid, and that it was damaged. Breach, 
 nonpayment of fifteen guineas, or the amount of tlie damage. Money 
 counts. 
 
 Plea 3, to the first count, that at the time of making the supposed 
 agreement, the defendant was to the knowledge of the plaintifis a prostitute, 
 and that the supposed agreement was made for the supply of a brougham 
 to be used by her as such prostitute, and to assist her in carrying on her 
 said immoral vocation, as the plaintifis when they made the said agreement 
 well knew, and in the expectation by tlie plaintitis tliat the defendant 
 would pay the plaintiffs the moneys to be paid by the said agreement out 
 of her receipts as such prostitute. Issue. 
 
 The case was tried before Bramwell, B., at Guildhall, at the sittings 
 after Michaelmas Term, 18G5. It then appeared that the plaintiffs were 
 coach-builders in partnership, and evidence was given which satisfied the 
 jury that one of the partners knew that the defendant was a prostitute ; 
 but tliere was no direct evidence tliat either of the plaintiffs knew that 
 the brougham was intended to be used for the purpose of enabling the 
 defendant to prosecute her trade of prostitution ; and there was no 
 evidence that the plaintiffs expected to be paid out of the wages of prosti- 
 tution. 
 
 The learned judge ruled that the allegation in the plea as to the mode 
 of payment was iunnaterial, and he put to the jury the following ques- 
 tions : 1. Did the defendant hire the brougham for the purpose of her 
 prostitution "i 2. If she did, did the plaintiffs know the purpose for 
 wliich it was hired ? The jury found that the carriage was used by tlie 
 defendant as part of her display, to attract men ; and the plaintiffs knew 
 it was supplied to be used for that purpose. Tiiey gave nothing for the 
 alleged damage. 
 
 On this finding, the learned judge directed a verdict for the defendant, 
 and gave tlie plaintifis leave to move to enter a verdict for tliem for the 
 fifteen guineas penalty. 
 
 M. Chambers, Q.C., in Hilary Term, obtained a rule accordingly, on 
 the ground that there was no evidence that the plaintifis knew the pur- 
 pose for which tlie brougham was to be used ; and that if there was, the 
 allegation in the jslea that the plaintiffs expected to be paid out of the 
 receipts of defendant's prostitution was a material allegation, and had not 
 been proved : Bowry v. Bennett'. 
 
 [Pollock, C. B., referred to Cannan v. Bryee-.'\ 
 
 Diyhy Seymour, Q.C., and Beresj'ord, shewed cause. No direct evidence 
 could be given of the plaintifis' knowledge that the defendant was about 
 to use the carriage for the purpose of prostitution ; but the fact tliat a 
 person known to be a prostitute hires an ornamental brougham is sufficient 
 ground for the finding of the jury. 
 
 > 1 Ciimp. 348. = 3 B. &.k. 179.
 
 684 PEARCE V. BROOKS. [C'HAP. VI 
 
 [Bramwell, B. At the trial I was at first disposed to think that 
 there was no evidence on this point, and I put it to the jury, tliat, in some 
 sense, everything which was supplied to a prostitute is supplied to her to 
 enable her to carry on her trade, as, for instance, shoes sold to a street 
 walker ; and that tlie things supplied must lie not merely such as would 
 be necessary or useful for ordinary purposes, and might be also applied to 
 an immoral one ; but that they must be sucli as would under the circum- 
 stances not be required, except with that view. The jury, by the mode in 
 which they answered the question, shewed that they appreciated the dis- 
 tinction ; and on reflection I think they were entitled to draw the in- 
 ference which they did. They were entitled to bring their knowledge of 
 the world to bear upon the facts proved. The inference that a prostitute 
 (who swore that she could not read writing) required an ornamental 
 brougham for the purposes of her calling, was as natural a one as that a 
 medical man would want a brougham for the purpose of visiting his 
 patients ; and tlie knowledge of the defendant's condition being brought 
 liome to the plaintiffs, the jury were entitled to ascribe to them also tlie 
 knowledge of her purpose.] 
 
 Upon the second point, the case of Bowry v. Bennett^ falls short of 
 proving that the plaintiff must intend to be paid out of the proceeds of 
 the illegal act. The report states that the evidence of the plaintiff's' 
 knowledge of the defendant's way of life was "very slight;" and Lord 
 Ellenborough appears to have referred to the intention as to payment not 
 as a legal test, but as a matter of evidence with reference to the particular 
 circumstances of the case. The goods supplied there were clothes ; with- 
 out other circumstances there would be nothing illegal in selling clothes to 
 a known prostitute ; but if it were shewn that the seller intended to be 
 paid out of her illegal earnings, the otherwise innocent contract would be 
 vitiated. Neither is Lloyd v. Johnson"-, cited in the note to the last ca.se, 
 an authority for the plaintifl's, for there part of the contract would have 
 been innocent, and all that the Court says is, that it cannot " take into 
 consideration which of the articles were used by the defendant to an 
 improper purpose, and which were not;" they had no materials for doing 
 so. The present case rather resembles the case of Crisp v. Churchill, cited 
 in Lloyd v. Johyison^, where the plaintiff was not allowed to recover for 
 the use of lodgings let for the purpose of prostitution. Appleton v. 
 Camphell'' is to the same effect. 
 
 M. Chambers, Q.C., and J. 0. Griffits, in support of the rule. As to 
 the first point, the expressions of Buller, J., in Lloyd v. Johnson", are 
 strongly in the plaintiffs' favour, especially his remarks on the case of the 
 lodgings : " I suppose the lodgings were hired for the express purpose of 
 enabling two persons to meet there." But in this case it is impossible to say 
 that there was any express purpose of prostitution ; the defendant might 
 
 ' 1 Camp. 348. M B. & P. 340. 3 g c. & P. 347. « 1 B. * P. at p. 341.
 
 CHAP. Vl] PEARCE V. BROOKS. 686 
 
 have used tlie bi-ougham for any purpose slie chose, as to take drives, to go 
 to the theatre, or to shop. Even if tlierc were evidence, tlie jury liavc 
 not found the purpose with sufficient distinctness. But secondly, tlie last 
 allegation in the plea is material, the plaintifls must intend to 1)0 p.-iid out 
 of the proceeds of the innnoral act. The words of Lord Ellonhorough in 
 Botvry v. Bennett^, are very plain, the plaintiff' must "expect to be paid 
 from the profits of the defendant's prostitution." 
 
 [BuAMWELL, B. At the trial I refused to leave this question to the 
 jury, but it has since occurred to me that the matter was doubtful. The 
 purpose of the seller in selling is, that he may obtain the profit, not that 
 the buyer shall put the thing sold to any particular use ; it is for the 
 buyer to determine how he shall use it. Suppose, however, a person were 
 to buy a pistol, saying to the seller that he means with it to shoot a man 
 and rob him, is the act of the seller illegal, or is it further necessary that 
 he should stipulate to be paid out of the proceeds of the robbery 1, If the 
 looking to the proceeds is necessary to make the transaction illegal, is it 
 not also necessary that it should be part of the contract that he shall be 
 so paid 1] 
 
 Suppose a cab to lie called by a prostitute, and the driver directed to 
 take her to some known place of ill-fame, could it be said that ho could not 
 claim payment 1 
 
 [Bramwell, B. If he could, this absurdity would follow, that if a 
 man and a prostitute engaged a cab for that purpose, and if, to meet your 
 argument, the driver reckoned on payment, as to the woman, out of the 
 proceeds of her prostitution, the woman would not be liable, but the man 
 would, although they engaged in the same transaction and for the same 
 purpose.] 
 
 If the contract is void for this reason, the plaintiffs were entitled to 
 resume possession, and to bring trover for the carriage ; a test, therefore, 
 of the question will be, whether in such an action, if the jury found the 
 same verdict as they have found here, on the same evidence, the plaintiffs 
 would be entitled to recover. 
 
 [Martin, B. I think they would ; and that if the carriage had not 
 been returned in this case, the plaintifls would, on our discharging this 
 rule, be entitled to determine the contract on the ground of want of 
 reciprocity, and to claim the return of the article.] 
 
 Pollock, C. B. We are all of opinion that this rule must be discharged. 
 I do not think it is necessary to enter into the subject at large after what has 
 fallen from the bench in the course of the argument, further than to say, 
 that since the case of Carman v. Bryce', cited by Lord Abinger in deliver- 
 ing the judgment of this Court in the case of JPKiimcll v. Bobiiison", and 
 followed by the case in which it was so cited, I have always considered it 
 as settled law, that any person who contributes to the performance of an 
 1 1 Camp. 348. = 3 B. & A. 179. ^ 3 M. & W. at p. 441.
 
 686 PEARCE V. BROOKS. [CHAP. Vl 
 
 illegal aot by supplying a thing with the knowledge that it is going to be 
 used for that purpose, cannot recover the price of the thing so supplied. 
 If, to create that incapacity, it was ever considered necessary that the 
 price sliould be bargained or expected to be paid out of the fruits of the 
 illegal act (which I do not stop to examine), that proposition has been 
 overruled by the cases I have referred to, and has now ceased to be law. 
 Nor can any distinction be made between an illegal and an immoral pur- 
 pose ; the rule which is applicable to the matter is, Ex turpi causa non 
 oritur actio, and whether it is an immoral or an illegal purpose in which 
 the plaintiff has participated, it comes equally within the terms of that 
 maxim, and the effect is the same ; no cause of action can arise out of 
 either the one or the other. The rule of law was well settled in Cannan v. 
 Bryce' : that was a case which at the time it was decided, I, in common 
 with many other lawyers in Westminster Hall, was at first disposed to re- 
 gard -with surprise. But the learned judge (then Sir Charles Abbott) who 
 decided it, though not distinguished as an advocate, nor at iirst eminent as 
 a judge, was one than whom few have adorned the bench with clearer 
 views, or more accurate minds, or have produced more beneficial results in 
 the law. The judgment in that case was, I believe, emphatically his 
 judgment; it was assented to by all the members of the Court of King's 
 Bench, and is now the law of the land. If, therefore, this article was 
 furnished to the defendant for the purpose of enabling her to make a dis- 
 play favourable to her innnoral purposes, the plaintiffs can derive no cause 
 of action from the bargain. I cannot go with Mr. Chambers in thinking 
 that everything must be found by a jury in such a case with that accuracy 
 from which ordinary decency would recoil. For criminal law it is some- 
 times necessary that details of a revolting character should be found dis- 
 tinctly and minutely, but for civil purposes this is not necessary. If 
 evidence is given wliich is sufficient to satisfy the jury of the fact of the 
 immoral purpose, and of the plaintiffs' knowledge of it, and that the article 
 was required and furnished to facilitate that object, it is sufficient, 
 although the facts are not expressed with such plainness as would offend 
 the sense of decency. I agree with my Brother Bramwell that the verdict 
 was right, and that the rule must be discharged. 
 
 Martin, B. I am of the same opinion. The real question is, whether 
 sufficient has been found by the jury to make a legal defence to the action 
 under the third plea. The plea states first the fact that the defendant 
 was to the plaintiffs' knowledge a prostitute ; second, that the brougham 
 was furnished to enable her to exercise her immoral calling; third, that the 
 plaintiffs expected to be paid out of the earnings of her prostitution. In 
 my opinion the plea is good if the third averment be struck out ; and if, 
 therefore, there is evidence that the brougham was, to the knowledge of 
 
 » 3 B. <& A. 179.
 
 CHAP. VI J PEARCE V. lillOOKS. 687 
 
 tlie plaintiffs, liirod for the purpose of sucli display as would assist tliu 
 defendant in her inniioral occupation, the substance of the plea is proved, 
 and the contract was illegal. When the rule was moved I did not clearly 
 apprehend that the evidence went to that point ; had I done so, I sliould 
 not have concurred in granting it. It is now plaiii that enough was proved 
 to support the verdict. 
 
 As to tlie case of Carman v. ISryce ', I \\a,\e a strong impression tiiat it 
 has been questioned to this extent, tliat if money is lent, the lender 
 merely handing it over into the absolute control of the borrower, although 
 he may have reason to suppose that it will be employed illegally, he wall 
 not be disentitled from recovering. But, no doulit, if it were part of the 
 contract that the money should be so applied, the contract would be 
 illegal. 
 
 PiGOTT, B. I am of the same opinion. I concurred in granting the 
 rule, not on any doubt as to the law, but because it did not seem clear 
 whether the e\'idence would support the material allegations in the plea. 
 Upon this point, I think that the jury were entitled to call in aid their 
 knowledge of the usages of the day to interpret the facts proved before 
 them. If a woman, who is known to be a prostitute, wants an ornamental 
 brougham, there can be very little doubt for what purpose she requires it. 
 Then the principle of law expressed in the maxim which my Lord has 
 cited governs the case. It cannot be necessary that the plaintiffs should 
 look to the proceeds of the immoral act for payment ; the law would indeed 
 be blind if it supported a contract where the parties were silent as to the 
 mode of payment, and refused to support a similar contract in the rare 
 case where the parties were imprudent enough to express it. The plaintiffs 
 knew the woman's mode of life, and where the means of payment would 
 come from, and to require the proposed addition to the rule would be to 
 make it futile. As to the expressions of Lord Ellenborough which have 
 been relied on, I think they were only meant to give an illustration of 
 what would be evidence of the plaintiffs' participation in the immoral act, 
 and that we are not overruling anything that he has laid down. 
 
 Bramwell, B. I am of the same opinion. There is no doubt that the 
 woman was a prostitute ; no doulit to my mind that the plaintiffs knew it; 
 there was cogent evidence of the fact, and the jury have so found. The 
 only fact really in dispute is for what purpose was the brougham hired, 
 and if for an immoral purpose, did the plaintiffs know it 1 At the trial I 
 doubted whether there was evidence of this, but, for the reasons I have 
 already stated, I think the jury were entitled to infer, as they did, that it 
 was hired for the purpose of display, that is, for the purpose of enabling 
 the defendant to pursue her calling, and that the plaintiffs knew it. 
 
 That being made out, my difficulty was, whether, though the defendant 
 
 1 3 B. & A. 179.
 
 6S8 PEARCE V. BROOKS. [CHAP. VI 
 
 hired tlic hrougliani for tliat purpose, it could he said that the plaintifi's let 
 it for tlie sauie purpose. In one sense, it was not for the same purpose. If a 
 man were to ask for duelling pistols, and to say : " I think I shall fight a 
 duel to-morrow," might not the seller answer : " I do not want to know 
 your purpose ; I ha\e nothing to do with it ; tliat is your business : mine 
 is to sell the pistols, and I look only to the profit of trade." No doubt the 
 act would be immoral, but I have felt a doubt whether it would be illegal ; 
 and I siiould still feel it, but that the authority of Cannan v. Bryce', 
 M'Kinnell v. Eohinsun' concludes the matter. In the latter case the plea 
 does not say that the money was lent on the terms that the borrower 
 should game with it ; but only that it was borrowed by the defendant, and 
 lent by the plaintifT " for the purpose of the defendant's illegally playing 
 and gaming therewith." The case was argued by Mr. Justice Crompton 
 against the plea, and by Mr. Justice Wightman in support of it ; and the 
 considered judgment of the Court was delivered by Lord Aljinger, who 
 says (p. 441) : "As the plea states that the money for which the action is 
 brought was lent for the purpose of illegally playing and gaming there- 
 with, at the illegal game of 'Hazard,' this money cannot be recovered back, 
 on the principle, not for the first time laid down, but fully settled in the 
 case of Cannan v. Bryce. The principle is that the repayment of money, 
 lent for the express purpose of accomplishing an illegal object, cannot be 
 enforced." This Court, then, following Cannan v. Bryce\ decided that it 
 need not be part of the bargain that the subject of the contract should be 
 used unlawfully, but that it is enough if it is handed over for the purpose 
 that the borrower shall so apply it. We are, then, concluded by authority 
 on the point ; and, as I have no doubt that the finding of the jury was 
 right, the rule must be discharged. 
 
 With respect, however, to the allegation in the plea, which, as I have 
 said, need not be proved, and which I refused to leave to the jury, I desire 
 that it may not be supposed we are overruling anything that Lord 
 Ellenborough has said. It is manifest that he could not have meant to lay 
 down as a rule of law that tliere would be no illegality in a contract unless 
 payment were to be made out of the proceeds of the illegal act, and that 
 his observation was made witli a different view. In the case of the hiring 
 of a cab, which was mentioned in the argument, it would be absurd to 
 suppose that, when both parties were doing the same thing, with the same 
 object and purpose, it would be a lawful act in the one, and unlawful in 
 the other. 
 
 Pollock, C. B. I wish to add that I entirely agree with what has 
 fallen from my Brother Martin, as to the case of Cannan v. Bryce\ If a 
 person lends money, but with a doubt in his mind whether it is to be 
 actually applied to an illegal purpose, it will be a question for the jury 
 whether he meant it to be so applied ; but if it were advanced in such a 
 
 ' 3 B. & A. 17U. =: 3 M. & W. 434.
 
 CH. VI] Ex parte Wolverhampton banking co. In re Campbell. G89 
 
 way tliat it could not possilily lie a bribe to an illegal purpose, and after- 
 wards it was turned to that use, neither Caiman v. Brijce, nor any otlicr 
 case, decides tiiat his act would be illegal. The case cited rests on tlie fact 
 that tlie money was borrowed with the very object of satisfying an illegal 
 purpose. 
 
 Rule discharged. 
 
 Ex parte WOLVERHAMPTON AND STAFFORDSHIRE 
 BANKING COMPANY. In re CAMPBELL. 
 
 In the High Court of Justice, November 12, 1884. 
 
 (Reported in Law Reports, 14 Queen's Bench Division, 32.) 
 
 Appeal from the Wolverhampton County Court. 
 
 David Campbell was a potato merchant at Wolverhampton, and he 
 kept an account with the Wolverhampton and Staflbrdshire Banking 
 Company, which in December, 1883, was overdrawn. On the 22nd of 
 December he had an interview with the manager of the bank, and re- 
 quested him to cash two cheques for sums amounting to 96/. is. Ultimately 
 the manager consented to do this, on Campbell's undertaking to pay 10?. 
 into the bank at once, and to pay the rest of the 9GI. 4«. on the 26th of 
 December. The bank cashed the cheques, but Campbell did not pay in 
 either the 10/. or the rest of the sum as he had promised. On the 29th of 
 December he filed a liquidation petition of which the bank received notice 
 the same day. On the 7th of January the bank obtained from the sti- 
 pendiary magistrate at Wolverhampton tlie issue of a summons against 
 Campbell, to answer a charge of having incurred a liability and obtained 
 credit under false pretences, or by means of other fraud, contrary to sub-s. 1 
 of s. 13 of the Debtors Act, 1869, and the lltli of January was fixed for 
 the hearing of the summons. On the 10th of January, Mr. Ebenezer 
 Hunter, an uncle of Campbell's wife, had an interview wth the bank 
 manager, and endeavoured to induce him to withdraw the summons. The 
 manager referred him to the solicitors of the bank. Hunter called on tlie 
 solicitors, and they arranged with him that they would consent to an 
 application to the magistrate on behalf of Campbell for the withdrawal of 
 the summons, on his undertaking to pay the bank the 961. is. and 10/. 10.<. 
 for costs. Hunter signed an undertaking to that efiect. When tlie 
 summons came on to be heard, Campbell's solicitor applied to the magisti-ate 
 to allow it to be withdrawn. The solicitors of the bank consented to the 
 application, and the magistrate allowed it. After this Hunter went to 
 tlie bank and paid the 106/. 14s. He was asked how it was that he was 
 putting his hand into his pocket in the matter, and he told botli the 
 
 F. 44
 
 GOO Ex parte Wolverhampton banking co. [chap, vi 
 
 manager jiiid tlio solicitor that Mrs. Campbell was a favourite niece of his 
 wife, and tliat he was anxious tliat her feelings should be spared. 
 
 The proceedings under the liquidation petition afterwards fell through, 
 and on the 15th of January a reeei\nng order was made against Campbell 
 upon a creditor's petition, founded on the filing of the liquidation petition . 
 as an act of bankruptcy. Campbell was afterwards adjudicated a bankrupt, 
 and the trustee in the bankruptcy applied to the county court for an order 
 that the bank should pay the 106/. 14s. to him, on the ground that it 
 formed part of the estate of the bankrupt. There was evidence that 
 Hunter paid the 106/. 14s. to the bank in coin, which he had previously 
 received from the bankrupt's wife, and that she had taken the money out 
 of a bag of money which her husband had handed to her for the purpose. 
 The bank manager and the hank's solicitor deposed that they believed 
 that Hunter was paying the bank his own money, and that he did not 
 state to them the source from which he had obtained it. The judge 
 ordered the bank to pay the 106/. 14s. to the trustee, on the ground that 
 money belonging to the bankrupt's creditors had been paid to stifle a 
 prosecution. The liank appealed. 
 
 Cooper Willis, Q.C., and Phmnpire, for the appellants. The money was 
 given to Hunter by the bankrupt's wife, she having taken it out of a bag 
 belonging to her husband. Hunter got a legal title to the money. At any 
 rate, he represented to' the bank that he was not paying the money to 
 them as the bankrupt's agent. 
 
 [Stephen, J. What has the knowledge of the bank to do with the 
 matter f\ 
 
 Money can be followed only when there is a trust. 
 
 [Cave, J. I do not agree to that proposition. If money is ear-marked 
 it can be followed ; although if it is used by the wrongdoer to pay a debt 
 of his own, the creditor to whom it is paid may be entitled to keep it.] 
 
 Hunter paid the money in discharge of an obligation. 
 
 [Stephen, J. If he had paid tlie money in discharge of a debt of his 
 own, or had paid it to the credit of his overdrawn current account with 
 his bankers, it could not be followed. But he was under no obligation to 
 pay the bankrupt's debt to the bank.] 
 
 He had given a written under'taking to pay it. A fraud committed by 
 the bankrupt cannot destroy the title of a person who had no notice of 
 the fraud. 
 
 [Cave, J. If Hunter had paid the money away in discharge of a debt 
 of his own the payee would have a good title to it, but surely not if he paid 
 it away voluntarily.] 
 
 Hunter paid it away as his own money in discharge of his undertaking 
 to the bank. There was nothing improper in the transaction so far as the 
 bank were concerned. 
 
 [Stephen, J. Was there a good consideration as between Hunter and 
 the bank for money paid to stifle a prosecution ?]
 
 CHAP. VI] In re Campbell. dOl 
 
 No felony had been committed. It is not enough to shew that tlie 
 bank were induced by the payment to abstain from prosecuting Campbell : 
 Flower v. Sadler^. 
 
 [Cave, J. It is a different thing if the payee enters into an agreement 
 not to prosecute. ] 
 
 Whatever difficulty there might have been in enforcing the agreement, 
 Hunter paid the money to the bank in discharge of it. The bank must be 
 entitled to retain tlie money as against him, and they had no notice that 
 the money belonged to any one else. Tliere is no autiiority for saying that, 
 when a prosecution is only for a misdemeanour, and the tribunal sanctions 
 its withdrawal, the prosecutor is bound to go on with it. The bank have 
 got possession of the money, and it cannot be taken away from them. 
 There has been no offence against the bankrupt law, and, therefore, the 
 trustee stands in no better position than the bankrupt himself would have 
 stood if there had been no bankruptcy : Ex parte Caldecott'. The bankrupt 
 himself could not have recovered the money. There was no agreement to 
 withdraw the prosecution; it was at the most an agreement not to press it. 
 
 Winslow, Q.C., and J. E. Linklater, for the official receiver, were not 
 heard. 
 
 Stephen, J. My view of the case, putting it very shortly, is this : — 
 As between Hunter and the bank there was no consideration at all for the 
 payment, because it was made in pursuance of a corrupt bargain. He said 
 to the bank, 1 will pay the money, if you will abandon tlie prosecution. 
 That is what it comes to in substance. Hunter, therefore, conferred on 
 tlie bank no better title to the money than he had himself, and he liad no 
 title to it, because it was given to him by Campbell's wife, with his know- 
 ledge, for tlie purpose of getting rid of the prosecution. Hunter in making 
 the payment to the bank was really acting as Campbell's agent. Another 
 point is tliis, and it establishes a distinction between the present case and 
 Ex parte Caldecott'. The object of making the pajrment was to cheat the 
 creditors of Campbell, to divert the money from the general body of the 
 creditors in favour of these particular creditors. I think this was clearly 
 an offence against the bankrupt laws ; it was contrary to their policy. 
 The bank were assisting Campbell in evading those laws, in order tliat he 
 might escape the prosecution with which he was threatened. 
 
 Cave, J. I am of the same opinion. A prosecution had been com- 
 menced by the bank against the bankrupt, eitlier on good grounds or on 
 bad grounds ; it is not material to inquire which. If it was commenced 
 on good grounds, it ought to have been proceeded with, and not made an 
 instrument for obtaining payment of the bank's debt. If it was commenced 
 on bad grounds, that makes tlie case, in my opinion, still worse for the 
 bank, for then it must have been commenced only with the object of ob- 
 
 1 10 Q. B. D. BT2. 2 4 Ch. D. I.IO. 
 
 44—2
 
 692 ATKINSON V. DENBY. [CHAP. VI 
 
 taining payment of tlie debt. I will, however, assume that the prosecution 
 was honestly instituted. Then Hunter comes to the bank and offers to pay 
 the debt if they will withdraw the prosecution, and they agree to this. 
 This was an illegal contract, an agreement to interfere with the course of 
 justice and stifle a prosecution. Consequently there was no consideration 
 for the payment of the money. But, both parties being in pari delicto. 
 Hunter could not have recovered the money from the bank. The money, 
 however, was not the money of Hunter ; it was furnished by Campbell, 
 and, by virtue of the relation back of the trustee's title to the act of bank- 
 ruptcy, it was the money of the trustee and had ceased to be the money of 
 Campbell. This distinguishes the case from Ex parte CaklecoU ', for there 
 no act of bankruptcy had been committed prior to the execution of the bill 
 of sale the validity of which was in question, and the property was not 
 that of the trustee at the time when the bill of sale was executed. There 
 are no doubt cases in which money cannot be recovered by the rightful 
 owner from a person who has obtained possession of it. This is one of the 
 incidents attaching to a payment of current coin. If a thief steals a bank 
 note and uses it in paying for goods which he buys, the rightful owner of 
 the note cannot recover it from the vendor of the goods. But, in the present 
 case, if Hunter had not paid the money away to the bank, it cannot be 
 doubted that the trustee could have recovered the money from him. It is 
 true that Hunter has paid away the money to the bank, but the bank have 
 given no consideration for it. The only reason why Hunter could not 
 recover it from the bank is that he is in pari delicto. But there is nothing 
 to prevent the trustee fi'om recovering the money from the bank, for 
 nothing had happened to give the bank a better title to it than Hunter 
 liad. He had no title to it, and therefore the bank had none. The decision 
 of the county court judge is right. 
 
 ATKINSON V. DENBY. 
 In the Exchequer, April 20, 1861. 
 
 [Reported in 6 Ilurhtone <£■ Norman, 778.] 
 
 In the Exchequer Chamber, February 10, 1862. 
 [Reported iii 7 Ilurhtone & Norman, 934.] 
 
 Action for money had and received. Plea — Never indebted. 
 
 At the trial before Martin, B., at the Middlesex sittings, in Michaelmas 
 Term, 1860, it appeared that the action was brought to recover 50^., paid 
 by the plaintiff to the defendant under the followng circumstances. In 
 October, 1857, the plaintiff, a manufacturer, being in embarrassed circum- 
 stances, offered a composition to his creditors of 5s. in the pound, and 
 a deed of composition was prepared for the purpose of carrying out the 
 
 ' 4 Ch. D. 150.
 
 CHAP. Vt] ATKINSON V. DKNBY. 693 
 
 offer. The defendant, a creditor for 319/., rcfiLscd to accept that offer or 
 to sign the deed of composition, saying he never would consent to do 
 so unless lie got something more. On the 13tli of October the defendant 
 and tiie plaintifl' met at the office of tlic plaintiff's attorney, when the 
 plaintiff and defendant went into a private room. The defendant pressed 
 the plaintiff to give him 150/. in cash in addition to the 5s. in the pound, 
 but eventually lie agreed to take a bill at six montlis for 108/. and 50/. 
 in cash. The defendant knew that several creditors were then waiting 
 to see what he would do. The plaintiff gave the defendant 50/. and a bill 
 for 108/. The defendant then signed the deed. Five creditors liad pre- 
 viously executed it, and twenty signed subsequently to the signature of the 
 defendant. The composition was paid. 
 
 The deed was as follows : — "To all to whom these presents shall come: 
 We, who have hereunto set our hands and seals, being respectively 
 creditors of J. Atkinson, of <fcc., send greeting. Whereas, tlie said 
 J. Atkinson is indebted to us, his said creditors, in divers sums of 
 money, which he is not able fully to satisfy and discliarge ; and the 
 said J. Atkinson hatli proposed to us to pay us respectively the sum 
 of 5s. in the pound upon, and in full satisfaction and discliarge of, our 
 respective debts : And whereas, we, the creditors of the said J. Atkin- 
 son, who have hereunto set our hands and seals, being satisfied of his 
 inability to pay and discharge his said debts in full, have agreed, and 
 do hereby respectively agree, to accept the said sum of 5s. in the 
 pound upon our respective debts, in full payment satisfaction and 
 discharge of all debts, dues and demands owing to us respectively 
 up to the day of the date hereof : Now, therefore. Know ye that, in 
 consideration of the sum of 5»-. in tlie pound on our respective debts 
 to us severally paid by the said J. Atkinson on the execution hereof 
 by us respectively, the receipt whereof is hereby respectively acknow- 
 ledged, and for divers other good causes and considerations us thereunto 
 respectively moving, we, the said several creditors who have hereunto 
 set our hands and seals, have and each and every of us hath remised, 
 released and for ever discharged, and by these present do and every of 
 us doth, for our and each of our heirs, &c., fully and absolutely remise, 
 release and for ever discharge the said J. Atkinson, his lieirs, &c., from 
 and again.st all debts, claims, suits, &c., in respect of our said debts, or 
 any cause, matter, or thing relating thereto. In witness," &c. 
 
 Upon these facts the defendant's counsel submitted tliat there was no 
 evidence to go to the jury, and, the learned Judge being of that opinion, 
 the plaintiff was non-suited, leave being reserved to him to move to enter 
 a verdict for 50/. 
 
 Overend, in the same term, obtained a rule for tliat purpose, on tlie 
 ground that the money was p;iid under coercion. 
 
 Hawkins and Thrupp shewed cause '. 
 
 • The arguments are omitted. Ed.
 
 C94 ATKINSON V. DENBY. [cHAP. VI 
 
 Pollock, C. B. T ;im of opinion that the plaintiff is entitled to recover 
 hack tliis money, and tlie ground upon which I entertain that opinion is 
 extremely short. It appears to me that if the plaintiff had given the 
 defendant a hill of exchange for the 501. the latter could not have enforced 
 payment of that bill ; and if it had been paid by the plaintiff', he would 
 have been entitled to recover back the money from the defendant. Here, 
 however, instead of giving a liill, the plaintiff has paid the defendant .50^. ; 
 and the question is, whether the plaintiff is entitled to recover back tliat 
 money. The course of modern decisions has been to give no effect to 
 a difference between two states of circumstances which is apparent only, 
 not real ; and it seems to me that the plaintiff, having paid tlie money, 
 may be considered in the same position as if he had given a bill and after- 
 wards refused to pay it ; or, not having given a bill, had promised to pay 
 the money ; in either case he would be free from any obligation to pay, 
 because there would be no legal mode of enforcing the promise. It appears 
 to me that this case is similar, not to that of an insolvent who voluntarily 
 pays a particular creditor, but to that of an insolvent who pays under 
 oppression and coercion. If, in the case which I have put, the creditor 
 could not recover on the bill, what difference does it make if, instead 
 of taking a security, he wiites to say, " I will not execute the composition 
 deed unless you pay my debt in fuU"1 He has no right, with the know- 
 ledge that he is deceiving the body of creditors, who consent to accept 
 a smaller sum under a notion that he is accepting no more, to be paid the 
 full amount of his debt. It is a gross fraud on the other creditors, and if 
 we were to hold that the money could not be recovered back, the con- 
 sequence would be that creditors would refuse to enter into arrangements, 
 each suspecting that the other was endeavouring to obtain an unfair 
 advantage. A creditor has no right to say, "I will pretend to take 
 nothing but my composition, but will insist on being paid in full." There 
 is another consideration which weighs with me, viz., that if this money 
 cannot be recovered back, one of the creditors will have received an advan- 
 tage in fraud of the others, and the whole transaction, from beginning to 
 end is void, and the deed of composition a nullity. It is clear that the 
 defendant intended that the plaintiff's debts should be released, and that 
 the other creditors should believe that the defendant had accepted the 
 composition in discharge of his debt. We are bound to give effect to the 
 law, and the only way in which the insolvent can be relieved is by 
 our holding that this money can be recovered back ; for, if the composition 
 deed is void, he might be instantly sued by the whole body of creditors. 
 In my opinion we shall more soundly administer the law and lay down a 
 rule having the effect of promoting the prosperity of trade and relieving 
 those who suffer from misfortune, by deciding that this money may be 
 recovered back, and, moreover, in doing so, we are giving effect to that 
 which the defendant intended, viz., that the plaintiff should be relieved 
 from iiis debts. On these grounds I think that the rule ought to be absolute.
 
 CHAl'. Vl] ATKINSON V. DENBV. 695 
 
 Martin, B. I am of opinion, as I was at the trial, that this money 
 cannot be recovered back. Except that the case is likely to go to a Court 
 of error, I should not have considered it necessary to state at lengtli my 
 view of the law. This was, in my judgment, a voluntary payment by the 
 plaintiH", with full knowledge of the facts, the money being justly due to 
 the defendant. Now, the law is clear that an illegal contract cannot be 
 enforced, and, as a general rule, money paid under an illegal contract cannot 
 be recovered back : quod tieri non deliet factum valet. This was an illegal 
 contract, and had it remained unexecuted the creditor could have maintained 
 no action against the debtor in respect of it. But the money has been 
 paid under this illegal contract, and therefore it cannot be recovered back 
 unless this case is an exception to the general rule. It is argued that tlie 
 money can be recovered back for this reason, that, as between the plaintiff' and 
 defendant, the defendant is the greater delinquent. But the plaintiff owed 
 it to his creditors to deal honestly by them, and it seems to me that this 
 transaction can only be an exception to the general rule by reason of its 
 operation ou the other creditors. But who was the greater delinquent 
 towards those creditors 1 It was the plaintifl" himself ; because he has 
 committed a breach of faith towards tlio.se persons to whom he was bound 
 to act honestly. As to oppression, I do not see why a creditor may not 
 get 20s. in the pound for a debt justly due to him. There is, in my 
 opinion, nothing contrary to law or morality in his so doing ; and I think 
 we should, so far as we can, strictly carry out the contracts people make 
 for themselves, when they are not contrary to law or morality. Wiien this 
 money was paid it was never intended by the parties that it should be had 
 back. However, my judgment proceeds on the principle that this was an 
 illegal contract, and that money paid under an illegal contract cannot be 
 recovered back. In the case of Smith v. Cujf', where the debtor was 
 allowed to recover back the money, payment of the promissory note had 
 been enforced against him ; he had no defence, and was obliged to pay it. 
 That is quite a diflerent matter from a voluntary payment. For these 
 reasons, I think that the rule ought to be discharged. 
 
 Bramwell, B. I am of opinion that the rule ought to be absolute. 
 Nothing can be more dishonest on the part of a creditor than to pretend 
 to take a composition of 5s. in the pound, and then agree privately with 
 the debtor for payment of a larger sum and so get more than the other 
 creditors. It may be that I am influenced by that consideration ; but if it 
 were not for the opinion entertained by my brother Martin, I should have 
 thought the law plain. I agree that if a man voluntarily pays money 
 which he was not bound to pay, as a general rule he cannot recover it 
 back. So, if a man voluntarily pays a bill of exchange which he was not 
 bound to pay, he cannot say " I ought not to have done so, and I will now 
 recover back the amount." I admit also, that if a man, upon a corrupt 
 
 ' 6 Mau. & Sel. IGO.
 
 696 ATKINSON V. oenbY. [chap. VI 
 
 bargain, pays money or gives a bill of exchange, he cannot recover it back. 
 Hut upon this general rule there ought to be engrafted v/hat has been 
 called judge-made law, but which I think is most salutary law. Tiie 
 qualification is this, tliat where, though the act is voluntary in one 
 sense, tiie person for whom it is done has a species of power over the 
 other so that the latter does the act under coercion, there, though the 
 contract is unlawful, it is not a case of par delictum, because it is a 
 case of oppressor and oppressed. That is the qualification of the general 
 rule, and in such cases, though the payment of money is in a certain 
 sense voluntary, it may be recovered back. If that is not true. Smith 
 v. Bromley^ and Smith v. Ctijf' were wrongly decided, because there the 
 act was ill one sense voluntary and the agreement illegal. But those 
 cases having been so decided, I think we are bound by them. Then, as a 
 general rule, a voluntary act cannot be undone, an unlawful agreement 
 cannot be enforced ; but the cases to which I have referred have esta- 
 blished the qualification I liave mentioned. Here, though in one sense 
 the payment was voluntary and the agreement illegal, it was a payment 
 under coercion, and the parties were not in pari delicto because there was an 
 oppressor and an oppressed. At one time I doubted whether the payment 
 ought not to be considered voluntary, not in the sense that the plaintiff 
 was not bound to make it, but that at the time he paid the money he did 
 not get the benefit of his bargain. The evidence, however, shews that the 
 whole transaction was uiio flatu, and whether the advantage to be got by 
 the payment occurred at the time it was made or a week afterwards seems 
 to me to make no difference. If, indeed, the plaintiff had voluntarily paid 
 the money, after the composition was entered into, the case would not have 
 been witliin the qualification I have mentioned, and Wilsori v. Hai/^ is an 
 authority that the money could not have been recovered back. With 
 great deference to Lord Wensleydale, and the doubt he expressed in 
 Hiygins v. Fitt^, as to the soundness of the dictum of Lord Elleiiborough 
 and Bayley, J., in Smith v. Cuff-, I think that case was rightly decided. 
 In my opinion it cannot alter the principle whether a bill is given which 
 tlie debtor is obliged to pay to a bona fide holder, after the execution by 
 the creditor of tiie composition deed, or whether the money is previously 
 paid by the debtor to the creditor. It makes no ditierence that in the one 
 case the form of action would be for money paid, in the other for money 
 had and received. At first I doubted whether this was not a voluntary 
 payment, but I should be reluctant to hold that the debtor is bound to say, 
 after the creditor has executed the deed of composition, " I will not give 
 you what you ask:" it would introduce dishonesty. I would rather a 
 debtor should perform his bargain then and recover back the money. 
 Smith v. Bromley^ is an authority that this is not a voluntary payment in 
 the sense that the plaintifl" need not have been paid the money. It was a 
 
 1 2 Doug. 6'j5, n. ^ 6 M. & Sel. 160. » 10 A. & E. 82. 
 
 ■" -1 Excb. 325.
 
 CHAP. Vl] ATKINSON V. DENBY. 697 
 
 payment for the purpose of obtaining ;in advaiitiigo wliiili tlio (Icfcndant 
 witliliekl, and wliicli he extoi'tionalcly granted. If this view is wrong no 
 action could have been maintained iu Smiih v. Bromley^ and Smilh 
 V. Cuff\ 
 
 Wilde, B. I also think that the plaintiff is entitled to recover back 
 the 50^. paid by him to the defendant. It would be a great misfortune if 
 any nice distinction broke through the established principle which, whethc^r 
 it is called commercial law or judge-made law, is tlie law until overruled, 
 and there are only two ways l)y which that can properly be done, either by 
 a Court of error or an act of the legislature. So long as it remains the 
 law we are bound to act upon it, for we do not sit here as a Court of 
 appeal. Then, has this question been decided t I think it has. In Smilh 
 V. Cuff", the bargain was that if the creditor would execute a composition 
 deed with the other creditors to receive 10s. in the pound, the debtor 
 would give him two promissory notes for the remainder of his debt. The 
 deed was executed and the notes given, and one of them got into the 
 hands of a third person who enforced payment from the debtor, and then, 
 notwithstanding the illegality of the original contract, the debtor recovered 
 the amount from the creditor. That is the substance of the case, and it 
 only differs from the present in this, that here, instead of a promissory 
 note being given, and indorsed to a third person, the money was paid 
 at the time of the illegal contract. In my opinion it is the same thing 
 whether the debtor gives his creditor 50^. in money or puts into his hands 
 a piece of paper by which payment of 50^. may be enforced against him. 
 Smith V. Cuff' was decided on the authority of Smith v. Bromlcy\ where 
 Lord Mansfield said, that "the taking money for signing certificates is 
 either an oppression on the bankrupt or his family, or a fraud on his other 
 creditors." Also, in Browning v. Jforris', Lord Mansfield, after observing 
 that, where the contract is executed and the money paid, if the parties are 
 in pari delicto, it cannot be recovered back, said : " For instance, in bribery, 
 if a man pays a sum of money by way of a bribe, he can never recover it 
 in an action ; because both plaintiff and defendant are equally criminal. 
 But where the contracts or transactions are prohibited by positive statutes, 
 for the sake of protecting one set of men from another set of men ; the one 
 from their situation and condition Ijeing liable to be oppressed or imposed 
 upon by the other ; there the parties are not in pari delicto, and in 
 furtherance of these statutes the person injured, after the transaction 
 is finished and completed, may bi-ing his action and defeat the contract." 
 Here the plaintiff says to the defendant, " Pay me back the money which 
 you received from me under an illegal contract." The defendant says, " It 
 is true that the contract was illegal, but we were in pari delicto, you paid 
 the money with full knowledge of all the circumstances." The plaintiff 
 replies, " We were not in pari delicto, for I paid you the money under coer- 
 I 2 Doug. 695, n. - G M. & Sd. 160. ' 2 Cowp. TM, 7U2.
 
 698 ATKINSON V. JIENBY. [CHAl'. VI 
 
 cion." That is tlie principle on wliich Smith v. Cuf'. Smith v. Bromley", 
 Brovminij v. Morris', Williams v. Iledlcy*, and tliat class of cases, proceeds. 
 The application of the maxim, quod fieri non debet factum valet, depends 
 on whether the parties are in pai-i delicto, and notwithstanding the dictum 
 of Parke, B., in Jliggins v. Pitt^, it seems to me that this case falls within 
 the principle, and that the parties are not in pari delicto, for one was under 
 coercion. Courts of justice should endeavour to throw every impediment 
 in the way of carrying out a contract to pay money in order to induce one 
 creditor to execute a deed which is a fraud on the other creditors ; and the 
 most effectual mode of preventing it is to hold tliat the money may be 
 recovered back. Therefore, on the ground of public policy, on principle, 
 and on authority, if we find that money has been paid under a fraudulent 
 contract, and the parties are not in pari delicto, we ought to hold that it 
 may be recovered back. 
 
 Rule absolute. 
 
 The defendant appealed against this decision. 
 
 Thrujrp (Mathew with him) now argued for the defendant. 
 
 Cleasby appeared for the plaintiff, but was not called upon to argue. 
 
 CocKBURX, C. J. We are all of opinion that Smith v. Bromley and 
 Smith V. Cuff govern the present case. It is true that the latter relates to 
 the giving promissory notes, not money ; but, in point of principle, I can 
 see no difference between giving a promissory note or money, as regards 
 the act being voluntary. Where the one person can dictate, and the other 
 has no alternative but to submit, it is coercion, and, in the language of 
 Lord Ellenborough, "one holds the rod and the otlier bows to it*"'. Where 
 a debtor offers his creditors a composition, whereby they are all to receive 
 the same proportionate amount in respect of their debts, it is contrary to 
 the policy of the law to allow him to purchase the consent of one creditor 
 by payment of his debt in full. It is said that both parties are in pari 
 delicto. It is true that both are in delicto, because the act is a fraud upon 
 the other creditors, but it is not par delictum, because the one has the 
 power to dictate, the other no alternative but to submit. We are all of 
 opinion that the cases I have mentioned apply, and that it would be 
 mischievous if we were to hold that they did not. 
 
 Judgment affimied. 
 
 ' 6 M. & Sel. 160. = 2 Doug. 695. ' 2 Cowp. 790. 
 
 ■> 8 East, 378. = i Exch. 312, 325. « Smith v. Cuff, 6 M. & Sel. 165.
 
 CHAPTER VII. 
 
 DISCHABGE OF CONTRACT. 
 SECTION I. 
 
 BY AGREEMENT. 
 
 LANGDEN v. STOKES. 
 
 In the King's Bench, Michaelmas Tekm, 1G34. 
 
 [Reported in Croke Charles, 383.] 
 
 Assumpsit. Whereas tlie defendant, 2 Apr. 1633 (for such a valuable 
 consideration) assumed to go such a voyage in such a ship before August 
 following ; and alleges a breach in the non performance. The defendant 
 pleaded, that before any breach the plaintiff, the fourth of April, at such a 
 place, exoneravit eum of the said promise. Hereupon the plaintiff de- 
 murred. And now Rolls for the plaintiff alleged, that this pleading a 
 discharge, without shewing how, was not good ; and he cited divers 
 books 22 Ed. IV. 40. Quod indemnem conservet, or exonerabit, is no 
 plea. But Maynard for the defendant argued to the contrary, that for as 
 much as this was an action grounded upon a promise liy words, it may be 
 discharged by words, before the breach thereof ; and therefore exoneravit 
 generally is a good plea ; and he cited for this, 3 H. VI. 36. And of this 
 opinion was all the Court (absente Berkeley). And Richardson, said, 
 that he knew it had been so resolved divers times ; and the rule was 
 remembered eodem niodo quo oritur, eodein modo dissoh-itur ; wherefore it 
 was adjudged for the defendant, quod querens nihil capiat per billam. 
 
 EDWARDS V. WEEKS. 
 
 In the Common Pleas, Trinity Term, 1677. 
 
 [Reported in 2 Modern Reports, 259.] 
 
 Assumpsit. The plaintifl" declared, that the defendant, in con.sideration 
 that the plaintiff at his request had exchanged horses with him, promised
 
 700 MAY V. KING. [chap. VII 
 
 to pay liini tive pounds ; and \w, alleged a breach in the non-performance. 
 The defendant pleads, that the plaintiflF, before any action brought, dis- 
 charged him of his promise. 
 
 And upon a demurrer the question was. Whether after a breach of a 
 promise a parol discharge could be good 1 The case of Langden v. iSlokes' 
 was an authority that sucli a discharge had been good before the breach, 
 viz. The defendant promised to go a voyage ; the breach was alleged 
 in non-performance ; and the defendant pleaded, that before any breach 
 the plaintiff exoneravit eum ; and upon demurrer it was held good before 
 the breach. But here was no time agreed for the payment of this live 
 pounds, and therefore it was due immediately upon request ; and 'not 
 lieing paid, the promise is broken, and the parol discharge cannot be 
 pleaded. 
 
 And of that opinion was all the Court, and judgment for the plaintiff, 
 nisi, &c. 
 
 Qua;re, If he had pleaded such a discharge before any request of pay- 
 ment, whether it had been good 1 
 
 MAY V. KING. 
 In the King's Bencu, Trinity Term, 1701. 
 
 [Reported in 12 Modern licports, 537.] 
 
 Indebitatus assumpsit for forty pounds for work done, and quantum 
 meruit for the same. The defendant pleads, that there being mutual 
 dealings between the plaintiff and him, they came to an account ; and that 
 it did appear on the account, that the defendant was in arrear to the 
 plaintiff but five pounds, which he promised to pay him ; in consideration 
 whereof the plaintiff did discharge him of the said debt and claim : to this 
 plea there was a demurrer. 
 
 It was now argued for the defendant, that a promise, before it is broke, 
 may be discharged by another promise ; and a case in Trinity Term, in the 
 twenty-second year of Charles the Second, was relied upon, and it was 
 this : A man sold a horse to another for twenty pounds, and there is other 
 dealing between them, and upon reckoning together it was agreed between 
 them, that he that sold the horse owed to the other five shillings and no 
 more ; and in debt brought for the horse this special matter was pleaded, 
 and held a good bar. Vide 1 Mod. 205, 206. 2 Mod. ii. And in many 
 cases else one may confess and avoid the cause of action, or else plead 
 generally, and give it in evidence ; as in maintenance one may confess and 
 avoid it, by saying he was a counsel at law, and did it for his fee; 21 Edw. 
 3, 17, and yet this would be good in evidence upon a not guilty. 3 Cro. 
 
 ' Cro. Car. 383 ; I Sid. 293.
 
 SECT. l] MAY V. KINO. 701 
 
 900. To an action for a malicious prosecution, probable cause of suspicion 
 is a good plea, though it may be given in evidence upon not guilty pleaded. 
 2 Cro. 130. Br. Maintenance, 16. 10 Co. 88. 9 Hen. 6, G4. That one 
 may plead the maintenance was for his fee, or generally not guilty, and 
 give it in evidence ; and the diversity was said to be where the fact is 
 complicated, and may be apt to inveigle the jui-y ; there, that the Court 
 may be the better able to direct the jury, the special matter may be 
 pleaded ; and here it was said, that the defendant gave colour to the 
 plaintiff; for we agree there was a cause of action once, but tliat it is now 
 gone by the account : and formerly the special matter used to be pleaded 
 in trover, and held well ; as that the goods were bought in market 
 overt, wliereby the property was allowed once to have been in the 
 plaintiff. 
 
 Holt, Chief Justice. It is true, that a promise, before it is broke, 
 
 may be discharged by a parol agreement, but after it is broke it cannot 
 
 be discharged, without deed, by any new agreement, without satisfaction ; 
 
 as by accord with satisfaction, or by release in writing ; and it is likewise 
 
 true, that sale in market overt is a good plea in trover. But if one bind 
 
 himself in a bond for the payment of twenty pounds to A by a day 
 
 certain ; and A buy a horse of the obligor of the value of twenty pounds 
 
 before the day, and then they two account togetlier, and twenty pounds is 
 
 set and agreed for the horse, in an action brought upon the bond he 
 
 cannot plead the general issue ; yet he may plead solvit ad diem ; and must 
 
 not plead it by way of account, but it must be pleaded according to tlie 
 
 operation it has in law, and that is to be a payment ; and so here. As if 
 
 tenant for life grant his estate to him in reversion, it is a surrender, and 
 
 must be pleaded as sucli, and not by way of grant ; so here to plead this 
 
 by way of account, when the operation in law is payment, will be ill. 
 
 And per ipsum. If there be two dealers, and without coming to an account, 
 
 they agree to be clear against one another, it would not be well, without 
 
 coming to an account ; and the case quoted out of tlie Moderns was tiie 
 
 first of tliis kind, and by my consent shall be the last. And to plead it as 
 
 an account is but argumentative of payment, which is direct, and tliere- 
 
 fore not to be allowed ; nor need this be shewn for cause of the demurrer. 
 
 And this is nothing like debt upon a simple contract, to which it is a good 
 
 plea, that the defendant has given his bond for that debt, and that tlie 
 
 plaintiff did accept it in satisfaction' ; or where upon a general issue 
 
 that matter may be given in evidence ; for the bond is no payment of 
 
 the original debt, but a thing of a higher nature, which extinguisiies it. 
 
 And per Curiam, 
 
 Judgment for the plaintiff'. 
 
 I 12 Mod. 80, 406. 
 
 "^ And see the ca-se of Rolls v. Barnes, 1 Black. Rep. 0.5, where it is .said to have been 
 held by the Court on the authority of Adderley v. Evann in Hilary, 29 Geo. 2, that 
 insimul computissent is not a good plea in bar to an action ou assumpsit; for tliougli 
 true, it does not extinguish the original promi.se.
 
 702 KING V. GILLETT. [CHAl-. VII 
 
 KING V. GILLETT. 
 In the Exchequer, Trinity Vacation, 1840. 
 
 [Reported in 7 Meeson d- WeUby, 55.] 
 
 Assumpsit for the breacli of a promise to marry the plaintiff in a 
 reasonable time. Tiie declaration was in the usual form, alleging mutual 
 promises to marry. Plea, that after the making of the promise in the 
 declaration mentioned, and before any breach thereof by the defendant, to 
 •vdt on Ac, the plaintiff wholly absolved, exonerated, and discharged the 
 defendant from his promise and the performance of the same. Verifica- 
 tion. 
 
 Special demurrer, assigning for causes, that the plea consists wholly of 
 matter of law, on which no assumpsit nor material issue can be taken ; 
 that the facts which constitute the discharge alleged by the defendant 
 ought to have been set out, in order that the judgment of the Court might 
 have been taken as to their constituting such discharge or not, or otherwise 
 that issue might have been taken on some material fact so alleged ; and 
 that the allegations in the plea are much too general, and therefore no 
 traverse can be safely taken, so as to bring any distinct matter of fact in 
 issue, &c. — Joinder in demurrer. 
 
 The following points of argument were stated in the margin : — The 
 plaintiff will contend that a contract founded on mutual promises can 
 only be rescinded before breach by mutual consent ; and that a mere dis- 
 charge by one of the parties, without any act of the other party, is 
 incomplete. The defendant will contend that a promise may be discharged 
 by parol before breach, and tliat it is not necessary in pleading to state the 
 evidence of such discharge, or the special circumstances under which it 
 arises, or that there was any consideration for the same. 
 
 The case was argued in Trinity Term, by 
 
 E. Perry, in support of the demurrer. This plea may be proved in 
 many different ways, and the plaintiff is left entirely in the dark as to 
 what is the real ground of defence. [Alderson, B. There is no allegation 
 that the defendant agreed to the discharge.] The Court then called on 
 
 Montague Smith, in support of the plea. The plea is not pleaded as a 
 rescission of the contract : but the plaintiff cannot enforce an action 
 against the defendant, after she has dispensed with the performance of it. 
 There are many cases in which a party is debarred from maintaining an 
 action by a certain act or declaration of his own. [Alderson, B. How 
 can there be a dispensation before breach'?] It is a kind of leave and 
 license not to perform the contract. [Alderson, B. Does the contract 
 cease or continue 1 If it ceases, it is rescinded ; if it continues, there may
 
 I 
 
 SECT. l] KING V. GILLETT. 703 
 
 be a breach of it.] Langden v. Stokes^ is an authority for tlie defendant. 
 
 There, no more consideration was shewn for the discharge of tlie 
 
 defendant from his promise, tlian there is here. So in Com. Dig., Action 
 upon tlie Case upon Assumpsit, G, it is said — " if a man|piiake a promise, 
 he to whom it was made, before a breach may discharge it by parol:" 
 citing Treswaller v. Keyiie', and several other authorities. Many instances 
 might be put, in which a party debars himself from bringing an action 
 against another ; as by giving another leave to go over his ground ; or by 
 the gift of a horse, lent for a specific time, before that time is over ; yet 
 in such cases there is no consideration for so doing. Before breach, it is a 
 sort of license, which may be without consideration. It is a maxim of 
 law, that ex nudo pacto non oritur actio — but a party may debar himself 
 of an action without consideration. After breach, no doulit, nothing is 
 sufficient but accord and satisfaction. [Alderson, B. Tlie case of 
 Langden v. Stokes certainly appears to be directly in point.] 
 
 E. Perry. The pleadings are not fully set out in that case, and it is 
 quite consistent with all that appears in the report, that the plea may 
 have shewn an agreement, and a mutual exoneration of each party by the 
 other. The rule of the civil law there referred to is this : — " Nihil tarn 
 naturale est, quam eo genere quidque dissolvere, quo colligatum est : ideo 
 verborum obligatio verbis tollitur : nudi consensus obligatio coiitrario con- 
 sensu dissolvitur''. So, also, Pothier states the rule of the ci\il law : — 
 " With respect to those obligations contracted by the consent of the 
 parties, the release might be made by a simple agreement, by which the 
 creditor agreed with the debtor to hold him acquitted, and such agreement 
 extinguished the obligation pleno jure'." In Treswaller v. Keyne, which 
 was assumpsit on a promise by the defendant to pay the plaintiff il., in 
 consideration that the plaintiff would travel with him from London to 
 York, to help him to search for a will ; the plea stated tliat, after the 
 promise, and before any preparation made for the journey, it was accorded 
 and agreed between them that the plaintiff should forbear his journey, and 
 that the defendant should be discharged from the payment of the il., and 
 that accordingly he discharged the plaintiff of his journey and search. 
 However, that case was decided for the plaintiff on another point. So, in 
 Hiirford v. Pyle^, it was held that a contract founded on mutual promises 
 could not be discharged but with consent of both parties. Where the 
 consideration for the promise is executed, but something remains to be 
 done by one party, there a discharge by the other before breach may be a 
 discharge in toto ; but where it is a contract founded on mutual promises, 
 it can be discharged only by mutual consent, and the plea of exoneravit 
 eum does not apply to such a case. On this principle rest the decisions in 
 Leigh v. Paterson'^ and PhillpoUs v. Evans\ where it was held that a contract 
 
 ' Cro.Car. 383. Ante p. 099. The statement of the case by counsel ia omitted. Ed. 
 - Cro. Jac. 620. ■' Dig. xvii. 35. ■• Pothier on 01jlif,',ati(ius, Part iii. ch. iii. art. 1. 
 '• Cro. Jac. 483. « 2 Moore, 588. ' 5 M. it W. 475.
 
 704 FOSTER V. DAWBER. [CHAP. VII 
 
 to deliver goods on a certain day cannot be got rid of by a notice from the 
 seller, before that day, tliat he sliall not deliver the goods, unless it be 
 assented to by the buyer. 
 
 M. Smith referred to Edwards v. Weeks'. 
 
 Cur adv. vult. 
 
 The judgment of the Court was now delivered by 
 
 Alderson, B. In this case we are of opinion that the plea is good, 
 and that the demurrer must be overruled. 
 
 The question before the Court was tliis : — Whether, to an action 
 founded on mutual promises to marry within a reasonable time, the defen- 
 dant could plead that, before any breach of contract on his part, the 
 plaintiff wholly exonerated liim from the perfoiiuance of that contract. 
 And it was contended that the proper plea was, that before breach, the 
 plaintiff and defendant by mutual agreement had rescinded the contract 
 previously made between them. No doubt such a plea would be good ; 
 but on looking into the precedents to which we have been referred, we find 
 that the form of the present plea has been adopted and held good in several 
 cases. There are precedents in several of the books of entries^, and there 
 are two decided authorities Holland and Conier's case", and Langden v. 
 Stokes*. And we think this latter case explains the matter, and reconciles 
 the present plea with general principles. It seems to have been treated 
 there as a mere question of the form of plea — and so we think it is : for, 
 although we are of opinion that this plea is good in point of form ; yet we 
 think the defendant will not be able to succeed upon it at Nisi Prius, in 
 case issue be taken upon it, unless he proves a proposition to exonerate on 
 the part of the plaintiff, acceded to by himself ; and this in effect will be 
 a rescinding of the contract previously made. 
 
 We think, therefore, that judgment must be given for the defendant ; 
 but tlie plaintiff should have liberty to amend on payment of costs. 
 
 Leave to amend accordingly. 
 
 FOSTER V. DAWBER. 
 
 In the Exchequer, June 30, 1851. 
 
 [Ueported in 6 Exchequer Reports, 839. ] 
 
 Assumpsit. The first count of the declaration was on a promissory 
 note, dated the 7th of December, 1845, made by the defendant, for pay- 
 ment of 500^. and interest, on demand, to Clark, the plaintiff's testator. 
 The second count was on a similar note for 500?., dated the 20th of 
 January, 1846. 
 
 ' 1 Mod. 262; 2 Mod. 259. = Rast. Entr. C85; Browu's Entr. 07 (fol.edit.); 
 
 Hern's Pleader, 31. ' 2 Leon. 214. * Cro. Car. 383.
 
 SECT. l] FOSTER v. DAWBEli. 70') 
 
 Pleas to the first and second counts : secondly, tliat after the makin" 
 of tlie promissory notes, and before any demand of the sums of money 
 therein mentioned, or of either of tiieui, or of any interest thereon, and 
 before any breach of the promises in those counts mentioned, or either of 
 them, tlie said J. Clark, in his lifetime, to wit, &c., exonerated, absolved, 
 and discharged the defendant from, and then waived, performance of the 
 promises therein mentioned, and payment of the said notes respectively, 
 and of the sums of money and interest therein mentioned. Vei-itioation'. 
 Replication, de injuria. 
 
 At the trial. Lord Campbell, C. J., told the jury that, in his opinion, 
 there was evidence which would justify them in finding a verdict for the 
 defendant ; and they found accordingly. 
 
 Montague Chambers obtained a rule nisi to enter a verdict for the 
 plaintitf, or for judgment non obstante veredicto. 
 
 SJiee, Serjt., and Bramwell shewed cause against the rule obtained by 
 the plaintifl'. First, there was evddence in support of the second plea. It 
 was clearly the intention of Clark to exonerate and discharge the defendant 
 from the payment of the notes. Now the objection to the evidence will be 
 that the plea states the exoneration to have taken place "before breach ;" 
 and, the declaration being founded upon promissory notes payable on 
 demand, a breach iii point of law took place upon the delivery of the notes, 
 and consequently the plea was not supported. But the allegation in the 
 plea, when read with the context, is either surplusage or unintelligible, and 
 may be rejected, or it means merely that the exoneration took place before 
 demand made. 
 
 Secondly, the plea is good after verdict. It will be contended that a 
 promissory note, payable on demand, is not in the nature of an executory 
 contract, and cannot be waived by parol, that a debt arises upon the 
 delivery of the instrument ; and in support of this argument it will be said 
 that the Statute of Limitations runs from the date of the note. It, how- 
 ever, appears from the authorities that the liability of a party upon a bill 
 of exchange may be discharged by waiver alone, without any consideration. 
 This is laid down in Byles on Bills, 5th ed., p. 145, as follows: "It is 
 a general rule of law that a simple contract may, before breach, be waived 
 or discharged, ^vitiiout a deed or consideration ; but, after breach, there 
 can be no discharge, except by deed or upon sufficient consideration. To 
 this rule it is said that contracts on bills, which are regulated by the 
 custom of merchants, form an exception ; and the liability of the acceptor, 
 though complete, may be discharged by an express renunciation of his 
 claim on the part of the holder." In Dingwall v. Dunsler-, tiie decision 
 proceeded upon the ground that it did not appear that the holder of the 
 bill expressly discharged the acceptor. Now, tlie rule whicli governs bills 
 of exchange equally applies to promissory notes ; for those instruments are 
 
 ' Only so much of the case is given as relates to this plea. Eu. -' Dougl. 217. 
 F. ■^^
 
 70G FOSTER V. DAWBEB. [CHAP. VII 
 
 put upon the same footing as bills of exchange by the 3 & i Anne, c. 9. 
 Tlie plea is therefore good after verdict. 
 
 ]VtUef!, in support of the rule. First, the plea is not supported by the 
 evidence. The transaction between Clark and the defendant amounted to 
 a gift by the former of the notes to the defendant. An exoneration differs 
 from a gift in being founded upon an arrangement between the parties. 
 Kinff V. Gillctt '. Pailliet, in his Manuel de Droit Civil, Code Civil, liv. 3, 
 tit. 3, § 3, throws some light upon this subject. A gift is a matter wliich 
 rests entirely with the party who possesses the property which he passes by 
 the gift. But this transaction is not good as a gift ; for neither was there 
 any promise under seal, nor did the donor give the instrument, wliich was 
 the subject matter of the gift, to the defendant. The allegation that tlie 
 act took place "before breach" is not proved ; for a breach exists upon the 
 delivery of the note. [Parke, B. The allegation, if construed literally, is 
 unintelligible here, where the instrument creates a present duty : it must 
 cither be rejected, or it must be considered as meaning, before a demand 
 and refusal, to pay the notes.] Secondly, the plea is bad in substance. 
 The authorities do not fully support the proposition as cited from Byles on 
 Bills. In the present case, the defendant was a debtor to Clark ; and an 
 action of debt might have been maintained by Clark against the defendant 
 upon those instruments. No case is to ba found which decides that a debt 
 due upon a promissory note between the immediate parties can be waived 
 by a parol. In former times, an accommodation acceptor was considered 
 merely in the light of a surety. For these reasons, it will be found that 
 the cases referred to in the notes to the passage relied upon in Byles on 
 Bills do not support the position there laid down. Walpole v. Pidteney", 
 Black V. Peele', Rann v. Hiujlies^, A nderson v. Cleveland'', Wliatley v. Tricker^, 
 De la Torre v. Barclay", Adams v. Gregg', Cartright v. Williams', Farquliar 
 V. Southey". 
 
 Parke, B. (June 30), said : The Court has already disposed of all the 
 points in this case except two. The iirst of these depends upon the ques- 
 tion whether the evidence supported the second plea. [His Lordship, after 
 reading that plea, and stating the substance of the evidence, proceeded :] 
 There is no doubt that the effect of that transaction of the 16th of February, 
 1846, is to shew that the testator meant to discharge the defendant from 
 all liability upon the notes. But it was contended that, as the plea stated 
 the transaction to have taken place before breach, the plea was not proved. 
 The plea is inartificially drawn, and appears to have been copied from tlie 
 precedents of a plea in discharge of an executory contract. Now, it is 
 competent for both parties to an executory contract, by mutual agreement, 
 without any satisfaction, to discharge the obligation of that contract. But 
 
 ' 7 M. & W. 55; ante, 702. = Cited iu Dingwall v. Dunsier, Dougl. 247. 
 
 » 7 T. E. 350, n. * 13 East, 430, n. = 1 Camp. 35. « 1 Stark, 7. 
 
 ' 2 Stark, 531. s 2 Stark. 340. " 2 C. & P. 490.
 
 SECT. l] FOSTER V. DAWBEU. 707 
 
 an executed contract cannot be cliscliargccl except by release under seal, or 
 by performance of the obligation, as by payment, where the obligation is 
 to be performed by payment. But a promissory note or a bill of exchange 
 appears to stand on a diii'erent footing to simple contracts; and we think 
 the words " before breach," when taken with reference to those instru- 
 ments, are either idle or absurd. If they are to be taken as having any 
 meaning in this plea, they must be read in conjunction with the context ; 
 and they merely amount to an allegation that Clark discharged the defen- 
 dant from all lialiility before any demand of the sum of money mentioned 
 in the notes. And, if that be so, the plea was proved ; for Clark exonera- 
 ted the defendant before ho called on him to pay the amount of the notes. 
 We are, therefore, of opinion that the plea was proved. 
 
 The next question is whether the plea is good after verdict. Mr. Willes 
 disputed the existence of any rule of law by which an obligation on a bill 
 of exchange, by the law-merchant, can be discharged by parol ; and he 
 questioned the decisions, and contended that the authorities mei'ely went 
 to shew that such an obligation might be discharged as too remote but not 
 as between immediate parties. The rule of law has been so often laid 
 down and acted upon, although there is no case precisely on the point as 
 between immediate parties, that the obligation on a bill of exchange may 
 be discharged by express waiver, that it is too late now to question 
 the propriety of that rule. In the passage referred to in the work of my 
 brother Byles, the words "it is said" are used ; but we tliink the rule there 
 laid down is good law. We do not see any sound distinction between the 
 liability created between immediate and distant parties. Whether tliey 
 are mediate or immediate parties, the liability turns on the law-merchant, 
 for no person is liable on a bill of exchange except through the law- 
 mercliant ; and probably the law-merchant being introduced into this 
 country, and diflering very much from the simplicity of the common law; 
 at the same time was introduced that rule quoted from Pailliet as prevail- 
 ing in foreign countries, viz., that there may be a release and discharge 
 from a debt by express words, although unaccompanied by satisfaction or 
 by any solemn instrument. Such appears to lie the law of France ; 
 and probably it was for the reason above stated that it has been 
 adopted here with respect to bills of exchange. But Mr. Willes 
 further contended that, though the rule might be true with respect 
 to bills of exchange it did not apply to promissory notes, inasmuch 
 as they are not put upon the same footing as bills of exchange by the 
 statute law. The negotiability of promissory notes was created by the 
 Statute 3 & 4 Anne, c. 9, which recites that "notes in writing, signed by 
 the party who makes the same, whereby such party promises to pay unto 
 any other person, or his order, any sum of money therein mentioned, are 
 not assignable or indorsaUc over, within the custom of merchants, to any 
 any other person" (that is one of the properties prjiaiissory notes are 
 recited not to have) ; "and that such person to whom the sum of money 
 
 45 — 2
 
 708 GOSS V. LORD NUGENT. [CHAP. VII 
 
 nicntionccl in such note is p.-iyable cannot maintain an action liy the 
 custom of merchants against the person who first made and signed the 
 same ; and that any person to whom such note shall be assigned, indorsed, 
 or made payable, could not, within the said custom of merchants, maintain 
 any action upon such note against the person who first drew and signed the 
 same." That appears to apply to cases of the original liability on a note, 
 as well as to those cases where the liability has been created by the assign- 
 ment of that instrument. Now, bills of exchange and promissory notes 
 differ from other contracts at connnon law in two important particulars : 
 first, they are assignable, whereas choses in action at common law are not ; 
 and, secondly, the instrument itself gives a right of action ; for it is pre- 
 sumed to be given for value, and no value need be alleged as a considera- 
 tion for it. In both these important particulars, promissory notes are put 
 on the same footing as bills of excliange by the statute of Anne; and 
 therefore we think the same law applies to both instruments. This court 
 was of this opinion in a case of Mayltew v. Cooze\ in which there was 
 a plea similar to tlie present, althougli the expression of that opinion was 
 not necessary for the decision of that case. The plea is, tlierefore, good 
 after verdict. 
 
 Bule ahsolute accordingly. 
 
 GOSS V. LORD NUGENT. 
 In the King's Bench, May 29, 1833. 
 
 [Reported in 5 Barnewall d: Adolphus, 58.] 
 
 Declaration stated, that, on tlie 13th of August, 1830, the plaintiff 
 was about to expose for sale, by public auction, fourteen lots of freehold 
 land, upon the following, among other, conditions : — "That the purchasers 
 should pay down immediately, into t!ie liands of the auctioneer, a deposit of 
 1.5?. per cent, on the purchase money, and should sign an agreement for 
 the payment of tlie remainder on the 29tli of September then next ; that 
 the vendor, at his own expense, should deliver to each purchaser, or his 
 solicitor, an abstract of the title of the propei-ty sold, and should deduce 
 a good title thereto ; and upon the purchaser's payment of the remainder 
 of the purchase money, and complying with those conditions, the vendor 
 sliould, at the purchaser's expense, convey his lot to, or as directed by 
 him." Averment, that, before the land was exposed to sale, by a certain 
 agreement between the plaintiff and the defendant, the plaintiff, in con- 
 sideration of 80/. paid l)y the defendant at the time of the signing the 
 agreement, and of the further sum of 370?., to be paid by him on the 29th 
 of September tlien next, agreed to sell, and tlie defendant agreed to pur- 
 
 ■* 2.Sicl November, 1819, not reported.
 
 SECT, l] GOSS V. LORD NUGENT. 709 
 
 cliase, the same Lincl, under tlio conditions of sale as near as miglit be, or 
 such of them as were then, under tlie said agreement, capable of taking 
 eflect. The declaration then stated mutual promises to perform the agree- 
 ment and conditions of sale, and averred that the plaintid' delivered an 
 abstract of the title to the property so sold, and deduced a good title 
 thereto, and had always been ready to convey, ifec. Breach, non-payment 
 of 370^. The second count differed from the first in stating, " that the 
 plaintifl" delivered an abstract of the title to the land, and made out a 
 good title to all the land excepting thirty-five feet thereof, and that after 
 making the agreement, the defendant discharged and exonerated the 
 plaintifl" from making out or deducing any other title to the last-mentioned 
 part of the land, and waived his right to require the same under the con- 
 ditions of sale and agreement. Plea, general issue. 
 
 At the trial before Gaselee, J., at the Buckingham Spring assizes, 1832, 
 it appeared that the plaintiff having advertised the property in question 
 for sale by public auction, the defendant agreed to purchase it by private 
 contract, agreeably to the printed conditions of sale. The memorandum 
 of agreement, which was annexed to the conditions of sale, was as 
 follows: — "Thomas Goss, in consideration of 80^. paid to him by George 
 Lord Nugent at the time of signing this agreement, and of 370^. to be paid 
 to him on the 29th day of September next, doth agree to sell to G. Lord 
 Nugent, and G. Lord Nugent agrees to purchase of T. Goss all the ground 
 and premises described in the particulars of sale hereunto annexed, as 
 near as may be, or such of them as are now under the present agreement 
 capable of taking eflfect." The fifth condition of sale was as follows : — 
 " That the vendor, at his own expense, shall deliver to each purchaser or 
 his solicitor, an abstract of the title to the property sold, and deduce a 
 good title thereto, and upon the purchaser's payment of the remainder of 
 the purchase money and complying with these conditions, the vendor shall, 
 at each purchaser's expense, convey his or her lot or lots to or as directed by 
 him." The agreement was drawn up at the request of the defendant, by 
 Hatten, the plaintiff's attorney. The defendant was afterwards informed 
 by Hatten, that as to one lot of thirty-five feet, there was a defect in the 
 title. The defendant said he would accept the title notwithstanding that 
 defect ; and possession of the whole was delivered to him. The vendor 
 was called upon by the defendant's solicitor, to furnish an abstract of title, 
 and he delivered one on the 10th of September. In November the 
 defendant's solicitor objected to the title as to the thirty-five feet. Hatten 
 said the objection had been waived. The defendant then refused to com- 
 plete the purchase. It was objected that oral evidence of the defendant's 
 waiver of his right to have a good title made out to the thirty-five feet, 
 was not admissible, because the action being brought to charge him on a 
 contract for the sale of land, the Statute of Frauds (29 Car. 2, c. 3, s. 4) re- 
 quired the whole agreement to be in writing. The learned Judge recpi\(Hl 
 the e\'idcnce, and finally directed the jury to find for the plaintill' if they
 
 710 GOSS V. LORD NUGENT. [CHAP. VII 
 
 tliought tliere had been a waiver by the defendant of the riglit in question. 
 Tlie jury having found for the plaintiff, leave was given to the defendant 
 to move to enter a nonsuit upon the point as to the admissibility of the 
 oral testimony. A rule nisi having been obtained for that purpose, 
 
 7iV/y in last Easter term shewed cause'. It may be conceded, that 
 oral evidence of any thing which occurred at the time when the written 
 contract was entered into cannot be received to vary it. Meres v. Ansell' ; 
 but here, the agreement in writing not being under seal, is a mere parol 
 agreement, and being executory, it might, without any violation of the 
 common law rule, (that every contract ought to be dissolved by matter of 
 as high a nature,) be discharged and abandoned, before breach, by a sub- 
 sequent unwritten agreement. The only question, therefore, is, whether, 
 by the Statute of Frauds, evidence of such unwritten agreement is ex- 
 cluded. That statute contains no provision for the dissolution of agree- 
 ments. It will be said, this agreement being one concerning an interest 
 in land, is within the fourth section, which enacts, that no action shall be 
 brought to charge any person upon any contract or sale of lands, or any 
 interest in or concerning them, unless the agreement upon which the 
 action shall be brought, or some memorandum or note thereof, shall be in 
 writing. Here, the plaintiff in the second count declares upon the written 
 agreement, and alleges that the defendant waived his right to insist on a 
 good title to part of the land. [Parke, J. Assuming that a written 
 contract concerning land may be wholly waived by a new agreement not 
 in writing ; here there has not been a waiver of the entire agreement, but 
 of a part of it only, and the effect of that waiver is to substitute for the 
 original contract a new one, which is to be proved partly by matter in 
 writing, and partly by oral testimony.] The original agreement consists 
 of two parts : the first is for the sale of land ; the second is for makinE; a 
 good title to that land. The agreement, so far as it is a contract for the 
 sale of land, cannot be altered by matter not in writing ; but so far as it 
 relates to making a good title to the land, it may be so varied. Here, the 
 verbal alteration does not in any degree vai-y what is to be done by either 
 party. The same land is to be conveyed, the same extent of interest, at 
 the same time, and the same price is to be paid. The oral evidence, there- 
 fore, is ofl'ered, not to vary the original agreement, but to shew that it was 
 discharged in part. There are cases, even within the scope of the Statute 
 of Frauds, where parol evidence is admissible to shew a dispensation with 
 the performance of part of the original contract ; such as an agreed sub- 
 stitution of other days than those stated in the contract for the delivery 
 of goods sold, Cuffv. Penn^, Warren v. Stag(j\ There is no diflerence in 
 principle between a wai\er of title, and a waiver of the time for completing 
 the contract. 
 
 1 Before Dcnman, C. J., Littledale and Parke, Js. 
 ~ 3 Wils. 275, and in Hayne v. Hare, 1 H. Bl. 659. 
 = 1 M. & S. 21. -1 Cited in Littler v. Holland, 3 T. E. 591. 
 
 I
 
 SECT. l] GOSS I'. LORD NUGENT. 711 
 
 Storks, Serjt., and Follett, contra. A wi-itten conti'act concerning an 
 interest in land cannot be abandoned or discliarged by matter not \n writ- 
 ing ; but even if it may, it cannot be altered by parol. In Buckhouse v. 
 Crosshi/', to a bill tiled by a purchaser for a specific performance, tlie 
 vendor of lands objected that the contract liad been discliarged by parol. 
 Lord Hardwicke said, " an agreement to waive a purchase contract is 
 as much an agreement concerning lands as the original contract," and lie 
 would not decide that it might be discharged liy parol ; and in Bell v. 
 Howard' he said, " that it was certain that an interest in land could not 
 be parted with, or waived by naked parol without writing." In Partcriche 
 V. Powlct^, the same noble and learned Judge said, that "to add anything 
 to an agreement in writing, by admitting parol evidence, which would 
 afiect land, is not only contrary to the Statute of Frauds and perjuries, but 
 to the rule of common law before that statute was in being." Assuming, 
 however, that an agreement for the purchase of land may be wholly 
 waived and discharged by parol, it cannot be varied. In Price v. Dijer*, 
 where the plaintiff prayed a specific performance of an agreement, for a 
 lease under which the plaintiff had taken possession, and afterwards the 
 parties had mutually aljandoned the terms of the written agreement, and 
 made another agreement by parol, as to the duration of the term, the rent 
 and other particulars ; Sir W. Grant, Master of the Rolls, said, " that the 
 waiver, spoken of in the cases, was an entire abandonment and dissolution 
 of the contract, restoring the parties to their former situation. No such 
 tiling was, for a moment, in contemplation of these parties. All that 
 they, at any time, meant, was to add to or to modify the terms of the 
 original agreement." So, in this case, the parties never intended entirely 
 to abandon the written contract, but merely to modify one of the terms of 
 it as to part of the property. The efl'ect of the oral evidence is not to 
 shew that the written contract was put an end to, or that the parties were 
 restored to their original situation, but to substitute a different contract, 
 which must be proved partly by writing and partly by oral e\'idence. The 
 contract in writing was to make a good title to all the lots ; the substi- 
 tuted contract is to make a good title to all but one. The result of the 
 authorities as to a parol variation, is stated by Mr. Sugden in his Law of 
 Vendors', to be, that evidence of it is totally inadmissible at law. [Pauke, 
 J. In CuffY. Perm'', and some cases relating to contracts for tiie sale of 
 goods of the value of 10/., (which the Statute of Frauds requires to be in 
 writing,) it has been held that the time (in which, by the agreement in 
 writing, the goods were to be delivered,) might be extended by a verbal 
 agreement ; but I never could understand the principle on which those 
 cases proceeded, for the new contract, to deliver within the extended 
 time, must then be proved partly by written, and partly by oral, evidence.] 
 
 Cur. culv. vull. 
 
 1 2 Eq. Ca. Abr. 32, pi. 41. = 9 Mod. 30.x ' 2 Atl;j-ns, 333. 
 
 * 17 Ves. jim. 3.30. = 8tli edit. 112. « 1 M. & S. 21.
 
 712 GOSS V. LORD NUGENT. [CHAP. VII 
 
 Denman, C. J., now delivered the judgment of the Court. By an 
 af;recment in writing, tlie plaintiiF contracted to sell the defendant several 
 lots of land for tlie sum of 450/., and to make a good title to them ; and 
 80/. was paid to him as a deposit. It was afterwards discovered, that, as 
 to one of the lots, a good title could not be made ; and it was then subse- 
 quently agreed by the defendant, that he would waive the necessity of a 
 good title being made as to that lot ; and the plaintiff afterwards delivered 
 possession of the whole of the lots to the defendant, which he accepted, 
 l)ut now refuses to pay the remainder of the purchase money, and he relies 
 on the olijection to the title. 
 
 By the general rules of tlie common law, if there be a contract which 
 has been reduced into writing, verbal evidence is not allowed to be given 
 of what passed .between the parties, either before the written instrument 
 was made, or during the time that it was in a state of preparation, so as 
 to add to or subtract from, or in any manner to vary or qualify the written 
 contract ; but after the agreement has been reduced into writing, it is 
 competent to the parties, at any time before breach of it, by a new con- 
 tract not in writing, either altogether to waive, dissolve, or annul the 
 former agreements, or in any manner to add to, or subtract from, or vary 
 or qualify the terms of it, and thus to make a new contract ; which is to 
 be proved, partly by the written agreement, and partly by the subsequent 
 verbal terms engrafted upon what will be thus left of the written agree- 
 ment. 
 
 And if the present contract was not suliject to the control of any 
 act of Parliament, we think that it would have been competent for 
 the parties, by word of mouth, to dispense with requiring a good title 
 to be made to the lot in question, and that the action might be 
 maintained. 
 
 But the Statute of Frauds has made certain regulations as to contracts 
 for the sale of lands ; and by the 29 Car. 2, c. 3, s. 4, it is enacted, that 
 no action shall be brought whereby to charge any person upon any con- 
 tract or sale of lands, tenements, or hereditaments, or any interest in or 
 concerning the same, unless the agreement upon which such action shall 
 be brought, or some memorandum or note thereof, shall be in writing, and 
 signed by the party to be charged therewith, or some other person there- 
 unto by him lawfully authorised. 
 
 It is to be observed, that the statute does not say in distinct terms 
 that all contracts or agreements concerning the sale of lands shall be in 
 writing ; all that it enacts is, that no action shall be brought unless they 
 are in writing. And as there is no clause in the act which requires the 
 dissolution of such contracts to be in writing, it should rather seem that 
 a written contract concerning the sale of lands may still be waived and 
 abandoned by a new agreement not in writing, and so as to prevent either 
 party from recovering on the contract which was in writing. It is not, 
 however, necessary to give an opinion upon that point, as this is not a
 
 SECT. l] GOSS V. LOHD NUGENT. 713 
 
 waiver and abandonment of the whole written agreement, but only a part 
 of it' ; and the question is, what is the effect of that? 
 
 It may be .said by the plaintiff, that this does not in any degree vary 
 wliat is to be done by either party ; that the same land is to be conveyed, 
 there is to be the same extent of interest in the land, and it is to be con- 
 veyed at the same time, and the same price is to be paid, and that it is 
 only an aliandonment of a collateral point. 
 
 But we think the object of the Statute of Frauds was to exclude all 
 oral evidence as to contracts for the sale of lands, and that any con- 
 tract which is sought to be enforced must be proved by writing only. 
 
 But, in the present case, the written conti-act is not that wliich is 
 sought to be enforced, it is a new contract which the parties have 
 entered into, and that new contract is to be proved, partly by the 
 former written agreement, and partly by the new verbal agreement ; 
 the present contract, therefore, is not a contract entirely in writing ; 
 and as to the title being collateral to the land, the title appears to 
 us to be a most essential part of the contract ; for, if there be not a 
 good title, the land may, in some instances, better not be conveyed 
 at all ; but our opinion is not formed upon the stipulation about the title 
 being an essential part of the agreement, but upon the general effect and 
 meaning of the Statute of Frauds, and that the contract now brought for- 
 ward by the plaintiff is not wholly a contract in writing. 
 
 We do not say that verbal evidence may not be given of customs and 
 usages applicable to the subject matter of the written contract where the 
 contract is silent ; that has been done in a great variety of instances. 
 
 Whether the plaintiff may not have relief in a Court of equity, we 
 give no opinion ; it would be for the Court to decide upon the case whicli 
 should be brouglit before them. There have, however, been some cases at 
 law on contracts within the Statute of Frauds, where verbal evidence has 
 been allowed : Wa7~ren v. Stagg, cited in Littler v. Holland', Thrush v. 
 RooJce', and Cuff v. Penn'. These were cases where tlie time for the per- 
 formance of the contract had been enlarged by a verbal agreement, and 
 they were decided on the ground that the original contract continued, and 
 that it was only a substitution of different days of performance. It is not 
 necessary to say whether these cases were rightly decided ; if they were so, 
 still the present is a different case, for here, without doubt, the terms of 
 the original contract were varied. 
 
 Rule absolute. 
 
 ' See Davis v. SijmuiuU, 1 Cox, 402, 406; Hill v. Gommc, 1 Beav. .540. Ed. 
 2 3 T. E. 581. ^ 1 Esp. N. P. C. ■■ 1 M. A S. 21.
 
 714 TAYLOH I'. HILARY. [CHAP. VII 
 
 TAYLOR V. HILARY. 
 In the Exchequer, Hilary Term, ISSf). 
 
 [Reported in 1 Cronqiton, 2Ieeson <(> lioscoe, 741.] 
 
 Assumpsit. The declaration stated, that in con.sideration that the 
 plaintiff, at tlie .special in.stance and request of the defendant, would allow 
 one Henry Holt to have goods as he niiglit want them, not exceeding in 
 the whole 200?., the defendant undertook and promised the plaintiff to 
 guarantee the payment of such goods ; and the plaintiff averred that he, 
 confiding etc., did afterwards, to wit ic , sell and deliver to the said 
 Henry Holt certain goods of great value, not exceeding in tlie whole 200?. ; 
 to wit, of the value of 190?., as he the said Henry Holt did want them ; 
 of which the defendant afterwards, to wit, on &o., had notice. Breach, 
 that Henry Holt had not paid for the said goods, or any part thereof, nor 
 had the defendant, although often requested, paid for tlie same, or any 
 part thereof. Plea, that after the making of the promise and under- 
 taking in that count mentioned, and before any breach thereof, to wit, on 
 the day and year aforesaid, it was, at the special instance and request of 
 the plaintiff', agreed by and between the plaintiff and defendant that the 
 plaintiff should supply to the said Henry Holt 200?. worth of goods as he 
 should want them, and that such goods should be paid for at the end of 
 three months by a joint bill at four months accepted by the defendant; 
 which agreement of the defendant he the plaintiff, before any breacli of 
 the promise and undertaking in the said count mentioned, accepted, in full 
 discharge of that promise and undertaking, and thereby then wliolly 
 released and discharged the defendant from the further performance of 
 that promise and undertaking. Verification. 
 
 To this plea the plaintiff" demurred ; and alleged as cause of demurrer, 
 that there was no material difl'erence between the agreement set out in the 
 count and that set out in the plea, and tliat the only diffei-ence applied to 
 the time of credit to be given ; and that it did not appear by the said 
 plea, but that the agreement therein mentioned had been fully carried into 
 effect by the plaintiff, and the time of credit expired. 
 
 Barstow in support of the demurrer. The plea is insuflicient, for the 
 reasons assigned in the demurrer. It does not in substance state an 
 agreement differing from that set up by the plaintiff. [Parke, B. It 
 differs in this, that it states an agreement to pay by a bill at four months, 
 while the agreement as stated in the declaration was merely to guarantee.] 
 Then the agreement set forth in the plea is not shewn to be binding 
 upon the defendant : being an undertaking for the debt of another, it 
 ought to have been shewn to be in writing, according to the Statute of 
 Frauds, and signed. There is a distinction between declaring upon and 
 
 I
 
 SECT. l] PLEVINS V. DOWNING. 715 
 
 pleading sucli a contract ; in the latter case, it must be shown to possess 
 the requisites of the statute, in order that it may appear to the Court that 
 an action will lie upon it ; for he shall not be allowed to take away the 
 plaintiff's action without giving him another. Case v. Jiarber'. [Parkk, 
 B. The first agreement was a guarantee, but, according to the second 
 agreement the defendant became absolutely bound as an original debtor. 
 In order to bring the case within the authority cited, it must be shewn 
 that the second agreement was a guarantee.] The plea is bad upon 
 another ground. It does not shew that the time of credit given by the 
 bill is still continuing. In cases of goods sold on credit, if the credit has 
 expired, the plaintifi' may sue on the implied contract ; and if the defendant 
 sets up as a defence that the credit has not expired, it must, since the new 
 rules, be specially pleaded, according to a late decision of the Court 
 of King's Bench, Edimmdi v. Harris^. [Parke, B. I believe some 
 doubts have been expressed with regard to that decision. If the time of 
 credit has not expired, the plaintiff proves a diflerent contract fi'om that 
 which he has stated in his declaration, viz. to pay on request.] 
 
 Per Curiam. Before tlie breach of the first agreement a new agree- 
 ment is entered into, varying the contract in an essential part, the time of 
 payment. The latter, then, is a substituted contract, and is an answer to 
 an action upon the former. The plea is not a plea of accord and satisfac- 
 tion, and does not therefore require an averment of performance. 
 
 Barstoiu had leave to amend. 
 
 PLEVINS V. DOWNING. 
 In the High Court of Justice, February 18, 18"G. 
 
 [Reported in Law T^eports, 1 Common Pleas Divisinn, 220. j 
 
 Action for non-acceptance of iron pursuant to contract. Plea, amongst 
 others, that the plaintiffs were not ready and willing to delixer the iron 
 according to the terms of the contract. Issue thereon. 
 
 The cause was tried before Quain, J., at the last spring assizes at 
 Stafibrd. The action was founded upon the following bought-note, dated 
 the I5th of June, 1874, and signed by the defendant : 
 
 " Bought of Messrs. Plevins & Co. 100 tons of grey forge pig iron at 
 75s. per ton, delivered to my works. Payment in cash, less '2\ per cent, 
 discount, on the 10th of each month following delivery. Delivery, 25 tons 
 at once, and 75 tons in July next." 
 
 1 Sir Thomas Eaymond, 450. = 4 Nev. d- M. 182.
 
 716 PLEVINS V. DOWNING. [CHAP. VII 
 
 The first 25 tons were delivered immediately, and 50 tons more in 
 July. On the 15th of October, the plaintiffs' manager met the defendant, 
 when the latter said to him, — "You have not sent any pigs lately;" to 
 which the plaintifls' manager replied, "I will send you a boat this week;" 
 and accordingly the plaintifls forwarded 25 tons addressed to the defendant, 
 but not at his works; and the defendant, on being iufoimed by letter that 
 the iron had been dispatched, declined to receive it. 
 
 Upon this evidence, the learned judge directed a verdict to be entered 
 for the defendant, with leave to tlie plaintiffs to move to enter the verdict 
 for them if the Court should be of opinion that there was any evidence of 
 a delivery and acceptance within the contract. 
 
 U. 2[atthetvs, Q.C., in Easter Term, 1875, obtained a rule nisi. 
 
 Puivell, Q.C., and Bosanquet, shewed cause. To sustain this rule, the 
 plaintifls must rely upon a new agreement for delivery of the 25 tons in 
 October. What passed between the plaintiffs' manager and the defendant 
 on the 15th of October did not amount to a contract; and, if it did, it was 
 entirely a new contract, which, not being in writing, was not enforceable. 
 Under the original contract, tlie delivery was to be completed in July, and 
 at tlie defendant's works. There was clearly no delivery or acceptance 
 under the original contract. In Marshall v. Lynn^ it was held tliat the 
 terms of a written contract for the sale of goods falling within the 
 operation of the Statute of Frauds, cannot be varied or altered by parol ; 
 and that, where a contract for the bargain and sale of goods is made 
 stating a time for the delivery of them, an agreement to substitute anotlier 
 day for that purpose, must, in order to be valid, be also in writing. 
 Parke, B., there says : " Here, there was an original contract in writing 
 to send these goods by the fiist vessel ; an alteration as to the time of their 
 delivery was subsequently made by parol ; and the point to be decided is, 
 whether such an alteration by parol of the written contract can be binding. 
 It appears to me that it cannot ; and that the same rule must prevail as to 
 the construction of the 17th section of the Statute of Frauds which has 
 already prevailed as to the construction of the 4th section. The decision 
 in Goss V. Lord Nugent^, the principle of which I have no doubt is 
 perfectly correct, has clearly establislied, with respect to the case of a 
 contract relating to the sale of an interest in lands, that, if the original 
 written contract be varied, and a new contract as to any of its terms 
 substituted in the place of it, that new contract cannot be enforced in law, 
 unless it also be in writing." And he treats Stead v. Dawber^ as an 
 authority in point. So, in Stowell v. Bobinson'^, it was distinctly held that 
 the day for the completion of the purchase of an interest in land inserted 
 in a written conti-act cannot be waived by oral agreement, and another 
 day substituted in its place. All that was decided in Noble v. Ward'^ was, 
 that an invalid agreement for the extension of the time for the delivery of 
 
 ' 6 M. (& \V. 109. - 5B. Jk- Ad. 58; ante, 708. ^ iq a. & E. 57. 
 
 •> 3 Bing. N. C. 928. = Law Kep. 2 Ex. 135.
 
 SECT. l] PLEVINS V. DOWNING. 717 
 
 goods under ;i written contract, did not effect an implied rescission of tlie 
 original contract. The facts in Hickman v. Ilayncs' were essentially 
 difl'erent from those of the present case. There, the plaintiff voluntarily 
 withheld delivery of the iron at the request of the defendants ; here, the 
 parol agreement (if any) to accept the iron was after breach, and therefore 
 ciiuld only be relied on as a new contract ; and, in giving judgment, the 
 Court expressly says, — "The result of the cases appears to be that neither 
 a plaintiff nor a defendant can at law avail himself of a parol agreement to 
 vary or enlarge the time for performing a contract previously entered into 
 in writing, and required so to be by the Statute of Frauds. ... In con- 
 clusion, we think that, although the plaintiff assented to the defendant's 
 request not to deliver the 25 tons of iron in question in June, he was in 
 truth ready and willing then to deliver them, and that the defendants are 
 at all events estopped from averring the contrary." Here, there was no 
 request on the part of the defendant to forbear to deliver in July, and 
 therefore tlie plaintiffs caiuiot recover upon the original contract. 
 
 Matthews, Q.C, and Jelf, in support of the rule. The only question is 
 whether there was any evidence to go to the jury of an agreement to vary 
 the time of delivery. 
 
 [Brett, J. Are you suing upon the original or upon a substituted 
 contract t] 
 
 Upon the original contract. There was evidence that the parties, for 
 their mutual convenience, agreed to substitute one mode of performance 
 for another ; and that may be done by parol. 
 
 [Brett, J. Could the plaintiffs on the expiration of the month of 
 July have sued the defendant for not accepting the iron '!] 
 
 Undoubtedly he could not. 
 
 [Brett, J. Could the defendant then have sued the plaintiffs for not 
 delivering ■?] 
 
 In the judgment in Hickman v. Haynes °, it is said : " The distinction 
 between a substitution of one agreement for another and a voluntary for- 
 bearance to deliver at the request of another, was pointed out and 
 recognised in Ogle v. Lord Vane". In that case the plaintiff sued the 
 defendant for not delivering iron pursuant to a written contract, and the 
 ijlaintiff sought to recover as damages the difference between the contract 
 price of the iron and the market price, not at the time of the defendant's 
 breach, but at a later time, the plaintiff having been induced to wait by 
 the defendant, and having waited for his convenience. It was contended 
 that the plaintiff was in fact suing for the lireach of a new verbal agree- 
 ment for delivery at a later date than that fixed by the original agreement: 
 but the Court held otherwise, and that, as the plaintiff had merely forborne 
 to press the defendant, and had not bound himself by any fresh agreement, 
 the plaintiff could sue on the original agreement, and obtain larger 
 
 I Law Eep. 10 C. P. at p. 598. - Law Eep. 10 C. P. at p. GOG. 
 
 « Law Hop. 2 Q. B. 275; in error, Law Eep. 3 Q. T?. 272.
 
 718 PLEVINS V. DOWNING. [CRAP. VII 
 
 (liiniiiges than he could have obtained if he had not waited to suit the 
 defendant's convenience." A contract about the time of delivery of goods 
 under a written contract, is not within the Statute of Frauds : Tyers v. 
 Rosednle ami FerryhiU Iron Co. ' 
 
 [Grove, J. That would be overruling Stead v. Daivher", Noble v. 
 Wai\P, and several other eases. 
 
 [Brett, J. In Tyers v. Rosedale and Ferryliill Iron Co.\ the second 
 contract was in writing.] 
 
 In Ogle v. Lord Vane'', the only question was upon what principle the 
 damages were to be assessed. 
 
 [Brett, J. How do you distinguish Noble v. Ward P] 
 
 As it was distinguished by the Court in Hickman v. Haynes^, — it 
 "merely shews that a parol agreement to extend the time for performing a 
 contract in writing, and required so to be by the Statute of Frauds, does 
 not rescind, vary, or in any way affect such written contract, and cannot 
 in law be substituted for it." There clearly was some evidence to go to 
 the jury. A waiver of the condition as to time may be either by words or 
 by acts and conduct. An assent to the substituted performance of a 
 contract for the transmission of goods in the change of route need not be 
 in writing : Leather Cloth Co. v. Hieronimus'''. If there was a new 
 contract, there clearly was evidence of a delivery and acceptance under it 
 whieli entitled the plaintiffs to sue for the price of goods sold and 
 delivered. 
 
 Cur. adv. vult. 
 
 Feb. 18. The judgment of the Court (Brett, Grove, and Denman, JJ.,) 
 was delivered by 
 
 Brett, J. In this case, which was tried before Quain, J., at the last 
 spring assizes at Stafford, the action was for non-acceptance of iron. 
 There was a plea that the plaintiffs were not ready and willing to deliver 
 according to the terms of the contract. Upon the issue on this plea the 
 learned judge directed the verdict to be entered for the defendant, with 
 leave to the plaintiffs to move to enter a verdict for them if there was any 
 evidence to go to the jury in support of their claim. A rule nisi having 
 been obtained, the case was argued before us. 
 
 The action was founded on the following bought-note : — " Bought of 
 Messrs. Plevins & Co. 100 tons of grey forge pig-iron at 75s. per ton, 
 delivered to my works. Payment in cash, less 2| per cent, discount, on 
 the 10th of each month following delivery. Delivery, 25 tons at once, and 
 75 tons in July next." Signed by the defendant. 
 
 By the end of July the plaintiffs had delivered and the defendant had 
 
 1 Law Kep. 8 Ex. 305; in error, Law Eep. 10 Ex. 105. 
 
 - 10 A. & E. 57. 3 Law Eep. 2 Ex. 135. 
 
 ■• Law Kep. 2 Q. B. 275 ; iu error, Law Eep. 3 Q. B. 272. 
 
 = Law Eep. 10 C. V. at p. 60i. « Law Eep. 10 Q. B. UO.
 
 SECT. l] PLEVINS V. DOWNING. 719 
 
 accepted 75 tons. There was no evidence of any refjuest by the defendant 
 to tlie plaintifts, made before the end of July, to witldioUl delivery of the 
 remaining 2.5 tons till after the end of July. But there was evidence that 
 in October the defendant verbally requested the plaintiffs to send him the 
 remaining 25 tons, and that the plaintiffs did in October forward 2.5 tons 
 addi-essed to the defendant ; but the iron did not arrive at the defendant's 
 works, and the defendant, on being informed by letter of the dispatcli of 
 tlie iron, wrote refusing to accept it. 
 
 It was argued for the plaintifts that they could maintain tlie action 
 upon the original contract ; that they were not driven to rely upon an 
 alteration of it as to the period of delivery, or upon a new contract ; that 
 the request of the defendant, acceded to by the plaintiffs, was only an 
 arrangement as to a mode of performing the original contract. It was 
 further argued that, if tliere was a new contract, there was evidence of a 
 delivery under it which entitled tlie plaintiffs to sue for the price of goods 
 sold and delivered. 
 
 It seems to us, however, that the verdict was rightly directed to be 
 entered for the defendant. It is true that a distinction has been pointed 
 out and recognised between an alteration of the original contract in such 
 cases, and an arrangement as to the mode of performing it. If the parties 
 have attempted to do the first by words only, the Court cannot give effect, 
 in favour of either, to such attempt ; if the parties make an arrangement as 
 to the second, though such arrangement be only made by words, it can be 
 enforced. The question is what is the test in such an action as the 
 present, whether the case is witliin the one rule or tlie other. 
 
 Wliere the vendor, being ready to deliver within the agreed time, 
 is shewn to have withheld his otter to deliver till after the agreed time in 
 consequence of a request to him to do so made by the vendee before the 
 expiration of the agreed time, and where after the expiration of the agreed 
 time, and within a reasonable time, the vendor proposes to deliver and the 
 vendee refuses to accept, the vendor can recover damages. He can properly 
 aver and prove that he was ready and willing to deliver according to the 
 terms of the original contract. He sliews that he was so, but that he did 
 not offer to deliver witliin the agreed time because lie was within such 
 time requested by the vendee not to do so. In such case it is said that the 
 original contract is unaltered, and that the arrangement has reference only 
 to the mode of performing it. But, if the alteration of the period of 
 delivery were made at the request of the vendor, though such request were 
 made during the agreed period for delivery, so that tlie vendor would be 
 obliged, if he sued for a non-acceptance of an offer to deliver after the 
 agreed period, to rely upon the assent of the vendee to his request, he 
 could not aver and prove that he was ready and willing to deliver accord- 
 ing to the terms of the original contract. The statement shews tiiat he 
 was not. He would be driven to rely on the assent of tlie vendee to a 
 substituted time of delivery, that is to say, to an altered contract or a new
 
 720 BILBOROUGH V. HOLMES. [CHAP. VII 
 
 contract. Tlii.s he cannot do so as to enforce his claim. This seems to be 
 the result of the cases which are summed up in Hickman v. I/ai/nes'. 
 
 In the present case, the plaintifls cannot prove that they were ready 
 and willing to deliver the disputed iron in July. They cannot say that, 
 being so ready, tliey withheld an offer to deliver in July at the request of 
 the defendant made in July. The day after the end of July they could 
 not have insisted on an acceptance of iron then oflered to the defendant. 
 They attempt to enforce an ofler of delivery made in October by means of 
 an alleged request then made by the defendant to forward iron assented to 
 by them. 
 
 Inasmuch as they cannot reiy upon their readiness and willingness to 
 deliver according to the terms of the original contract, because they were 
 not so ready and willing, they are logically driven to rely upon the 
 subsequent request of the defendant, either as a proposed alteration of a 
 term of the original contract, or as a request upon which to hang a new 
 contract to accept. But, as the request was merely verbal, the undertaking 
 sought to be founded on it cannot be enforced. 
 
 As to the suggestion that there was such a delivery and acceptance 
 according to the terms of a new contract as can supjjort an action for goods 
 sold and delivered, we think there was no sufficient evidence of such a 
 delivery and acceptance. 
 
 We are therefore of opinion that the rule must be discharged. 
 
 Eule discharged. 
 
 BILBOROUGH v. HOLMES. 
 In the High Court op Justice, December 16, 1876. 
 
 [lieported in Law Reports, 5 Chancery Division, 255.] 
 
 Claims in an administration action by Amiel, Priest, and Stoney. 
 
 Prior to the 16th of April, 1872, John Holmes, the testator in the 
 cause, and one George Exley, carried on in jiartnership at Leeds the 
 business of bankers, under the firm of John Holmes &, Co., and by the 
 name of the Leeds Mercantile Bank. 
 
 On the 16th of April, two new partners, Woodhead and Joseph 
 Holmes, were admitted into the firm. Notice of the admission of the new 
 partners as members of the firm was given by circular to all the customers 
 of the bank, including the present claimants, and the business was carried 
 on by the old and new partners together. 
 
 ' Law Ecp. 10 C. P. 50S.
 
 SECT. l] BILBOROUGU V. UOLMES. 721 
 
 On the ■2'M^ of April, 1872, tlie testator died ; liis ilfntli was advertised 
 in the newspapers, and the usual statutory athertisenieiits for creditors on 
 his estate were issued ; and it appeared that although the present claimants 
 did not see these advertisements, tliey in fact knew of liis death, and mad<! 
 no claims against his estate until those hereinafter mentioned. 
 
 After the testator's death the business was carried on under the same 
 tirm liy Exley, Woodhead, and Joseph Holmes, till the 23rd of May, 1874, 
 wiien Exley also died, and from that time the business was carried on by 
 Woodhead and Joseph Holmes, still under the fii-m of John Holmes k 
 Co., down to December, 1875, when the firm stopped payment and went 
 into liquidation. 
 
 The bank, which was chiefly a deposit bank, was in the habit of receiv- 
 ing moneys from customers on deposit, and paying interest for the same. 
 Whenever a customer paid in money to a deposit account the bank gave 
 him a receipt or deposit note in the following form : — 
 
 " Received from . . . the sum of . . . sterling to the credit of . . . 
 deposit account with the Leeds Mercantile Bank, subject to . . . notice of 
 withdrawal. 
 
 " John Holmes & Co. 
 
 "This deposit receipt to be given up on withdrawal of the whole or 
 any part of the deposit." 
 
 When a depositor drew out of the bank any portion of his deposit, or 
 paid in any further sum to his deposit account, he always gave up his old 
 deposit note, and received a fresh note precisely in the same form for the 
 amount then standing to his credit, and these notes were, both before and 
 after the death of the testator and down to the stoppage of the bank, 
 signed "John Holmes ife Co." Moreover, whenever any interest on a 
 deposit note was credited to a depositor and not drawn out, a fresh deposit 
 note was given to him in lieu of the old one, and the old one was 
 cancelled. 
 
 All the holders of deposit receipts, including the present claimants, 
 proved in the bankruptcy against Woodhead and Joseph Holmes for the 
 amount of the principal moneys and interest due on their deposit notes ; 
 and they each supported his claim by an affidavit that Woodhead and 
 Joseph Holmes were justly and truly indebted to them in the sum specified 
 "for money lent and advanced by me to the said debtors," for which sum 
 they had not " had or received any satisfaction or security except the 
 following deposit receipt." They then each scheduled a deposit note signed 
 "John Holmes & Co.," that in Priest's case being dated the 1st of July, 
 1875, that in Stoney's case, the 13th of November, 1873, and those in 
 Amiel's case, May and October, 1866, and July, 1870. 
 
 And they aU, on the 25th of May, 1876, received a dividend of 2*'. Gd. 
 in the pound upon the amount of their proofs ; but the claimants now 
 deposed that at the time they made their aflidavits in proof of their claims 
 F. 4G
 
 722 BILBOROUGH V. HOLMES. [CHAP. VII 
 
 against the estates of Woodhead and Joseph Holmes, they did not intend 
 to do, nor did they understand that they were doing, anything which could 
 be construed into an election by them of a remedy against the estates of 
 the bankrupts in lieu of their claims against the testator. 
 
 The present action having been brought in December, 1875, by the 
 executors of John Holmes' will against the persons beneficially interested 
 thereunder, for the administration of his real and personal estate, the 
 usual advertisements were issued for creditors of the estate. In reply to 
 these advertisements, the persons who held deposit notes of the bank at 
 the time of the testator's death sent in claims against his estate for the 
 amounts remaining due to them upon tlieir deposit notes. Upon the 
 claims so sent in, three classes of questions arose and were submitted to 
 the Court upon a representative case selected from each class of claimants. 
 The first case was that of Miss Amiel, who had not altered the amount 
 of her deposit. She was the holder of three deposit notes given to her 
 upon deposits made in 1866 and 1870, during the lifetime of the testator 
 and before Woodhead and Joseph Holmes became partners, and she had 
 neitlier increased nor diminished the amount of her deposits, but had 
 regularly received interest upon them from the old and new partners down 
 to the stoppage of the bank. 
 
 The second case was that of Mr. Priest, who had increased the amount 
 of his deposit. He had made a deposit of 186^., and received a note for 
 that amount in January, 1872, during tlie lifetime of the testator, and 
 when he and Exley were the only members of the firm, and after the 
 testator's death he from time to time deposited additional moneys, continu- 
 ing to do so after Woodhead and Joseph Holmes had become the only 
 members, and on each occasion he received a fresh deposit note for the 
 aggregate amount of his deposit. Tlie deposit note he held at the time the 
 fiiTu stopped payment was for 254Z., and he claimed the 186^. due at the 
 testator's death. 
 
 The third case was that of Mr. Stoney, wlio had diminished the amount 
 of his deposit. He was at the time of the testator's death the holder of a 
 deposit note for 7201., given when the testator and Holmes were the only 
 partners. In August, 1872, when Exley, Woodhead, and Joseph Holmes 
 were the partners, he withdrew 100^. and received a fresh note for 620/., 
 and he withdrew a further 100?. in the following November, receiving from 
 the same three partners a note for '5201. He also received interest until 
 the stoppage of the firm. 
 
 It did not appear that any deposit receipts were given between tlie 
 admission of Woodhead and Joseph Holmes and the death of the testator. 
 
 Robinson, Q.C., and Nortlmiore Lawrence, for the claimants in each 
 case : — 
 
 None of the claimants, in proving against the estate of the bankrupts, 
 liad any intention of accepting a remedy against that estate in lieu of the 
 liability of the estate of the testator, nor did their so proving have the
 
 SECT. l] BILBOROUGH V. HOLMES. 723 
 
 effect of releasing his estate : Winter v. Imies ' ; Sleech's Case ' ; Kellock'a 
 Case''; Ex iKirte Cama^; 'Bedford v. Deakin''. If not, there is, as n^gards 
 Miss Amiel's case, nothing but her leaving Iier money in the bank and 
 continuing to receive interest from the new firm upon what she lent to the 
 old firm, and, as regards Stoney's and Priest's cases, the additional fact 
 that they took new deposit notes upon altering the amount of their 
 deposits. 
 
 This receipt of interest, however, did not deprive ]\Iiss Amiel of her 
 right against the estate of the testator. In Daniel v. Crosn", where the 
 new partners re-issued the notes of the former partnership, the assets of 
 the deceased partner were held not to be discharged by the receipt of 
 interest from the surviving and new partners, and this is a distinct authority 
 on that point in favour of the claimant in Amiel's case. Again, the leav- 
 ing of money Ijy a creditor of a bank in the hands of the surviving 
 partners does not constitute a new contract, or operate as a relinquishment 
 of the old security : Sleec/is Case^. 
 
 Nor, as regards the other two cases, is the taking a new security 
 enough, without agreement express or implied, to discharge the old fimi : 
 Harris v. FartvelV ; Lindley on Partuersliip"; Swire v. Eedmau''. These 
 deposit notes are not, however, "securities." In Hopkins v. Abbott"' their 
 nature was considered, and it was held that they are not secunties for 
 money, but simply acknowledgments of indebtedness. The acceptance of 
 a fresh deposit note could not, therefore, operate as a change of security. 
 The question, however, is one of intention to release : Lindley on Partner- 
 ship"; and the evidence entirely negatives any such intention; while 
 there has lieen no such ladies on the part of any of the claimants as to 
 deprive them of their rights : Winter v. Innes''. 
 
 W. Pearson, Q.C., and Freelimj, for the defendants, tlie persons 
 beneficially interested in the estate of the testator Jolm Holmes : — ■ 
 
 In all three cases there has been a complete novation, and a substitu- 
 tion of new debtors in the place of the old. Secondly, there has been such 
 laches on the part of all the claimants as to disentitle them to relief in 
 equity. The claims are mere equitable claims, and the debts in respect of 
 which they are made were never tlie debts of Woodliead and Joseph 
 Holmes at all. It is not a question of intention, but of the construction 
 which the law will put upon the acts of the parties, and it is simply 
 whether B. is substituted as tlie debtor in respect of a debt incurred by 
 A.: Hart Y. Alexander'^; Lindley on Pai-tnership". Swire v . liedman ha,s 
 no bearing upon the question, and Hopkins v. Abbott is inapplicable, while 
 all the other cases cited on behalf of the claimants are cases in which 
 
 • 4 My. & Cr. 101, 108, lOU. - 1 Mer. 539, 568. ■'' Law Rep. 3 Ch. Iti'J. 
 
 ■■ Law Rep. 9 Ch. G8G. ■> 2 B. & A. 210. « 3 Ve.s. 277. 
 
 ^ 15 Beav. 81. » 3rd Ed. p. 402. » 1 Q. B. D. 530. 
 
 1" Law Kep. 19 Eq. 222. " 3rd Ed. p. 459. '- 4 My. & Cr. 101. 
 
 " 2 M. & W. 484; s.c. 7 Car. & P. 740. " 3rd Ed. p. 597. 
 
 4(j— 2
 
 724 BILBOROUGH V. HOLMES. [CIIAP. VII 
 
 sur\iviiig joint debtors were held liable, and there was no question of the 
 iiitiodiiction of a new partner. Tliat is the fallacy on which the argument 
 for the claimant has proceeded. Neither Woodhead nor Josepli Holmes 
 were partners when these liabilities were incurred, and the distinction is 
 plain between the case of a creditor continuing to deal with a person who 
 is a sur\-iving joLiit debtor, and that of a creditor dealing with a stranger 
 who was never a joint debtor at all. In the former there is not, and in 
 the latter there is novation, and the acceptance of a new debtor in substi- 
 tution for the old : In Re National Provincial Society ' ; In re International 
 Life Assurance Society^; In re Times Life Assuratice Society^; In re 
 Anchor Assurance Society''; In re Medical, <£rc.. Assurance Society^. These 
 are cases of insurance companies, but the principles involved are precisely 
 the same, and they are further illustrated by the cases of Evans v. 
 Brummond'^, Reed v. White'', and Thompson v. PercivaV. 
 
 The doctrine of novation is, in fact, drawn from the Civil Law, and 
 both before and after Justinian the Romans were familiar with the 
 principle that if a creditor stipulates with a stranger for the payment of 
 his debt, that is novation ; but without the introduction of the stranger 
 there must be a new term or a new condition of the contract in order to 
 create novation : Gaius, Commentaries (Book iii. ss. 176, 177); Justinian's 
 Inst. Book III. tit. 30, pi. 3, 4, 5; and Pothier's Pandects, Book xlvi. 
 Moreover, although all these debts were the debts of the testator and 
 Exley, all the claimants have proved in the bankruptcy against Woodliead 
 and Joseph Holmes as upon legal debts contracted by them, and none of 
 those debts, if founded on contracts entered into by the testator and Exley, 
 could have been admitted to proof as debts legally due from Woodhead 
 and Joseph Holmes unless the estates of the original debtors had been dis- 
 charged. This alone is fatal to these claims : Forth v. Stanton"; C^ixon v. 
 Chadley"'; Wharton \\ Walker ^^ ; Addison on Contracts '^ These claimants 
 had all notice of the death of the testator, and the change in the firm. 
 
 They were then proceeding to argue the question of laches when they 
 were stopped by the Court. 
 
 Dickinson, Q.C., and Rotner, for the plaintiffs, the trustees of the will 
 of the testator. 
 
 Robinson in reply : — 
 
 The proof against the estates of Woodhead and Joseph Holmes was not 
 enough to deprive the claimants of the rights which they had against the 
 estate of the testator. The effect of the notices given when the new 
 partners were taken, and of the subsequent dealings of the depositors with 
 the new firm, was to substitute the liability of all the four members of the 
 new firm for the liability of the two members of the old firm. There can 
 
 ' Law Kep. 9 Eq. 306. 2 Ibid. 316. = ii,;a. 5 ch. 381. 
 
 •• Ibid. 632. 5 Ibid. 6 Ch. 362. « 4 Esp. 89. 
 
 ' 5 Esp. 122. 8 5 B. & Ad. 925. " IWms. Sauud. 209 a, 211. 
 
 " 3 B. & C. 591, 595. " 4 B. & C. 163. '^ 7th Ed. p. 272 et seq.
 
 SECT. l] BILBOROUGH v. HOLMES. 725 
 
 be no novation without an intention to novate on the part of the creciitor ■ 
 Potliiei-'s Pandects'; and the case is on all fours with Harris v. FarweW ■ 
 and Hart v. Alexander^. 
 
 Hall, V.-C. :— 
 
 As regards the second and third of these claims, being the cases in 
 which new deposit notes were given, I think the contention is established 
 that the new partners only were liable. It has been argued that the 
 giving up of the old notes and the receiving the new ones was a matter of 
 form only ; and that the original liability was intended to and did continue 
 notwithstanding. But the circular stated that tlie new partners would 
 carry on the business in the old name, and the new notes were given after 
 such new partners had become the sole surviving members of the firm. 
 And accordingly the undertaking of the liabilities of the old firm by tiie 
 new members of the firm supplied a good consideration for giving up the 
 claim upon the old partners. Tliat being so, it is quite impossible to hold 
 that in these cases the old liability continued ; a new liability was 
 substituted for the original liability. 
 
 The case of Miss Amiel is somewhat different from the other two cases. 
 After the death of John Holmes she continued to receive interest from 
 Exley (the survivor of the two partners originally liable) and the two new 
 partners, and after Exley's deatli from the two new jtai-tners alone ; that 
 is, from two persons not originally liable to her. The new partners being 
 treated, and treating themselves as liable to satisfy these claims, they 
 cannot, I think, be considered as paying interest on behalf of the represen- 
 tatives of John Holmes, the deceased partner, but must l)e taken to have 
 paid it entirely on their own account. Moreover, the proof in the 
 bankruptcy was in all three cases solely against the estates of Woodhead 
 and Joseph Holmes, and was not, as in Harris v. FarweW, " for money 
 had and received to and for the use of " the creditors, but was for " money 
 lent and advanced" to the bankrupts. This is, in my opinion, quite 
 sufficient to shew, without any renewal of the deposit notes, that there was 
 an acceptance of the liability of the bankrupts, and are lease of the former 
 members of the firm. This distinguishes tlie case from Harria v. Farwell, 
 and I must hold that Miss Amiel, by her receipt of interest and her mode 
 of proof against the bankrupt's estate, has accepted them as her debtors in 
 lieu of the testator"", and consequently that her claims, as well as the two 
 others, must be disallowed ; I make no order as to costs. 
 
 1 Book xlvi. sect. 20. ^ 15 Beav. 31. 
 
 3 2 M. & W. 484; s.c. 7 Car. & P. 746. 
 
 * Upon the principle of election, the testator and the bankrupt not liaving been 
 jointly liable to the creditor, and the creditor therefore being bonrid to choose which 
 of the parties she would hold liable. " Wliere a man has an option to choose one or 
 other of two inconsistent things, when once he has made his election it cannot be 
 retracted, it is final and cannot be altered. ' Quod somel placuit in electionibus,
 
 726 GRAY V. GARDNER. [CHAP. VII 
 
 WILLIAM GRAY v. OLIVER GARDNER AND OTHERS. 
 
 Supreme Judicial Court op Massachusetts, March Term, 182L 
 
 [Reported in 17 Massachusetts /icporfs, 188'.] 
 
 Assumpsit on a written promise to pay the plaintiff 5198 dollars, 
 87 cents, with the following condition annexed, viz., "on the condition 
 that if a greater quantity of sperm oil should arrive in whaling vessels at 
 Nantucket and New Bedford, on or between the first day of April and 
 the first day of October of the present year, both inclusive, than arrived 
 at said places in whaling vessels on or within the same term of time the 
 last year, then this obligation to be void." Dated April 14, 1819. 
 
 Tlie consideration of the promise was a quantity of oil sold by the 
 plaintiff to the defendants. On the same day anotlier note unconditional 
 Iiad been given Ijy the defendants for the value of the oil, estimated at 
 sixty cents per gallon ; and the note in suit was given to secure the residue 
 of the price, estimated at eighty-five cents, to depend on the contingency 
 mentioned in tlie said condition. 
 
 At the trial before the Chief Justice, the case depended upon the 
 question whether a certain vessel, called the Lady Adams, witli a cargo 
 of oil, arrived at Nantucket on the first day of October, 1819, about 
 whicli fact the evidence was contradictory. The judge ruled tliat the 
 burden of proving the arrival within the time was on the defendants; and 
 further that, although the vessel might have, within the time, gotten 
 within the space which might be called Nantucket Roads, yet it was 
 necessary that she should have come to anchor, or have been moored, 
 somewhere within that space before the hour of twelve following tlie first 
 day of October, in order to have arrived within the meaning of the 
 contract. 
 
 The opinion of the Chief Justice on both these points was objected to 
 by the defendants, and the questions were saved. If it was wrong on 
 either point, a new trial was to be had; otherwise judgment was to be 
 rendered on the verdict, which was found for the plaintiff. 
 
 Whitman, for the defendants. As the evidence at the trial was contra- 
 dictory, the question on whom the burden of proof rested, became im- 
 portant. We hold that it was on the plaintiff. This was a condition 
 
 ampliuB displicere non potest.' That is Coke upon Littleton (146 a.), and I do not 
 doubt that there are mauy older authorities to the same effect. Wlien once there has 
 been an election to do one of the two things you cannot retract it and do the other 
 thmg ; the election once made is finally made." Per Lord Blackburn, in Scarf v. 
 Jardhic, 7 App. Cas. 360. Ed. 
 
 ' Langdell's Cases on Contracts, 2nd Edit. 785.
 
 SECT. l] GRAY V. GARDNER. 727 
 
 precedent. Until it should happen, the promise did not take eflfect. On 
 tlie occurrence of a certain contingent event, the promise was to be 
 binding, and not otlierwise. To entitle himself to enforce the promise, 
 the plaintiff must shew that tlie contingent event has actually occurred. 
 
 On the other point saved at the trial, the defendants insist that it was 
 not required by the terms of this contract tliat the vessel should be 
 moored. It is not denied that such would be the construction of a policy 
 of insurance containing the same expression. But evei'y contract is to bo 
 taken according to tlie intention of the parties to it, if sucli intention be 
 legal and capable of execution. The contemplation of parties to a policy 
 of insurance is, that the vessel shall be safe before slie shall be said to have 
 arrived. So it is in some otlier maritime contracts. But in that now in 
 question, nothing was in the minds of the parties, but that tlie fact of tlie 
 arrival of so much oil should be known within the time limited. The 
 subject-matter in one case is safety, in the other it is information only. In 
 this case the vessel would be said to have ariived, in common understand- 
 ing, and according to the meaning of tlie parties. 
 
 F. C. Gray, for the plaintiff. 
 
 Parker, C. J. The very words of tlie contract shew that there was a 
 promise to pay, which was to be defeated by the happening of an event, 
 viz., the arrival of a certain quantity of oil, at the specified places, in a 
 given time. It is like a bond with a condition : if the obligor would 
 avoid the bond, he must shew performance of the condition. The de- 
 fendants, in this case, promise to pay a certain sum of money, on condition 
 that the promise shall be void on the happening of an event. It is plain 
 that the burden of proof is upon them ; and if tliey fail to shew that tlie 
 event has happened, the promise remains good. 
 
 The other point is equally clear for the plaintifl'. Oil is to arrive at a 
 given place before twelve o'clock at night. A vessel with oil heaves in 
 sight, but she does not come to anchor before the hour is gone. In no 
 sense can the oil be said to have arrived. The vessel is coming until she 
 drops anchor, or is moored. She may sink, or take fire, and never arrive, 
 however near she may be to her port. It is so in contracts of insurance ; 
 and the same reason applies to a case of this sort. Both parties put 
 themselves upon a nice point in this contract ; it was a kind of wager as 
 to the quantity of oil which should arrive at the ports mentioned before a 
 certain period. Tiiey must be held strictly to their contract, there being 
 no equity to interfere with the terms of it. 
 
 Jvdymcnt on the verdict.
 
 728 PARKER V. TBBETSON. [CHAP. VII 
 
 PARKER V. IBBETSON. 
 
 In the Common Pleas, April 28, 1858. 
 [Reported in 4 Common Bench Reports, New Series, 346.] 
 
 This was an action against the defendant for wrongfully discharging 
 the plaintiff from his service. 
 
 The first count of the declaration stated, that, by agreement between 
 the plaintiff and the defendant, the plaintiff agreed to serve the defendant 
 for one whole year in the capacity of agent or representative in the defen- 
 dant's business of a manufacturer of woollen and mohair cloths, at a salary 
 of 150?. per annum; that the plaintiff duly entered upon the said ser- 
 vice; and that, although the plaintiff had always been ready and willing 
 to continue in such service on the terms aforesaid, yet the defendant, before 
 the expiration of the said year, refused thenceforth to allow the plaintiff 
 to continue in his said service, and then wrongfully discharged him there- 
 from without any reasonable cause. 
 
 The declaration also contained counts for money paid, and for money 
 found to be due upon accounts stated. 
 
 The defendant pleaded several pleas; amongst others, — first, a traverse 
 of the agreement alleged in the first count, — fifthly, to tlie first coimt, that 
 the plaintiff became and was the agent of the defendant, as in that count 
 mentioned, upon certain terms and according to a certain condition annex- 
 ed to the said contract by the general usage and custom in that behalf of 
 and in the trade and business in which the plaintiff was so employed as 
 aforesaid, that is to say, that either of the said parties might determine 
 the said service, upon gi\ing to tlie other of them one calendar month's 
 notice of his intention to do so, the plaintiff, in the event of the said ser- 
 vice so being determined, and upon tlie determination thereof, becoming 
 and being entitled to claim from the defendant a proportionate part of his 
 wages or salary aforesaid up to the expiration of such notice, and to the 
 time of such determination of the said service: Averment, that thereto- 
 fore, and one calendar month before the defendant put an end to the said 
 service, or refused to suffer or permit the said plaintiff to continue in his 
 said service, and discharged the plaintiff therefrom, he, the defendant, 
 gave to the plaintiff one calendar month's notice of his, the defendant's, 
 intention to put an end to the said service, and to discharge the plaintiff 
 therefrom; and tliat the defendant at and after the expiration of the said 
 calendar month refused to allow the plaintiff to continue in his, the de- 
 fendant's, said service, and discharged the plaintiff tlierefrom,— wliich was 
 the said alleged breach of contract in the first count mentioned. Issue 
 thereon. 
 
 ,*'
 
 I 
 
 SECT. l] PARKER V. IBBETSON. 729 
 
 The cause was tried before Cressvvell, J., at tlie sittings in London 
 after last Micliaelnias Tenii. It appeared tliat the defendant, who was a 
 woollen-merchant at Leeds, having a place of business in London, engaged 
 the plaintiff to serve him in the capacity of agent or representative there, 
 upon the terms contained in the following memorandum: — 
 
 "Memorandum of agreement made between Henry Ibbetson cfe Co., 
 of Leeds, of the first part, and Richard Awood Parker, of &c., of the 
 second part: The aforesaid Richard Awood Parker engages to serve the 
 said Henry Ibbetson cfe Co. as agent or representative, at the salary of 
 150?. per annum in consideration thereof. Also provided at the end of 
 the year the said H. Ibbetson ife Co. find the said Richard Awood 
 Parker has done sufficient business to justify them in recompensing by 
 making up his salary to 180Z., to do so, being a donation of 30/., to his 
 present stipulated amount of l-'iO/. As witness our hands this .30th day 
 of January, 1857. 
 
 (signed) " Henry Ibbetson & Co. 
 
 " Richard Awood Parker." 
 
 The plaintifl" continued in the serWce of the defendant under this 
 agreement until the 1st of August (receiving his salary monthly), when 
 the defendant gave him a month's notice to quit. For this dismissal, 
 which the plaintiff contended was wrongful, and in contravention of the 
 agreement, the present action was brought. 
 
 On the part of the defendant, several witnesses were called to prove a 
 custom in the particular trade to dismiss at a month's notice, though the 
 engagement was at a yearly salary : and it was proved that one hoiise of 
 great eminence adopted a form of hiring to exclude the custom for a 
 month's notice : but some of the witnesses, on cross-examination, said they 
 had never known an instance of a clerk having been dismissed at a 
 month's notice, where the agreement stipulated for a bonus for good con- 
 duct at the end of the year'. 
 
 The jui-y found, — first, tiiat the custom was proved, — secondly, that 
 the hiring was a special hiring, to wliich the custom did not apply; and 
 thereupon they found for the plaintiff, damages 101. 
 
 Ilugli UUl, Q.C., in Hilary Term last, obtained a rule nisi to enter a 
 verdict for the defendant, on the ground that, the jury Iiaving found the 
 fact of the existence of the custom for the defenda)it, their finding as to 
 the special terms of the contract was immaterial ; or for a new trial, on 
 the ground of misdirection, inasmuch as it was not a question for the jury 
 whether the special terms of the contract exchided the custom, but the 
 construction of the contract was for the court, and, according to tlie true 
 construction, the custom was not excluded. 
 
 Flyott, Serjt, and V. Williams, now shewed cause. No leave to enter 
 a verdict was reserved, consequently the most the defendant can have will 
 
 1 The summing up is omitted. Ed.
 
 730 PARKER V. IBBETSON. [CHAP. VII 
 
 be a new trial. It is said that the parties were hoinid by the custom, 
 notwithstanding the special terms of the agreement. But, by the form of 
 liis fifth plea, the defendant has made it a question for the jury ; and the 
 jury have disposed of it, by negativing the application of the custom 
 proved to the particular contract. [Crowder, J. What more is this than 
 a contract of hiring for a year, with a promise of a gratuity, under certain 
 conditions, at tlie end of it 1] The agreement contemplates that the rela- 
 tion of master and servant shall enure at all events until the end of the 
 year. There is no ambiguity in the document : no exposition can be ad- 
 mitted to contradict or vary its terms. No doubt, you may annex an 
 incident to a contract, where the contract is silent upon the subject, or 
 does not exclude it. But a party may always by special contract waive 
 the benefit of a custom : Webh v. Plummer, 2 B. & Aid. 746 ; Hutton v. 
 Worre7i, 1 M. k W. 466. In Spartali v. Bewcke, 10 C. B. 212, 222, 
 Wilde, C. J., says: "The rules of law relating to the admissibility of the 
 usages of trade to affect the construction of written contracts, are well 
 settled ; and the difliculty that has arisen respecting them has been, in 
 their application to the varied circumstances of the numerous cases in 
 which the discussion of them lias been involved. The rules of evidence 
 applicable to the present case, are, — first, that, in mercantile contracts, 
 evidence is admissible to prove that the words in which the contract is 
 expressed, in the particular trade to which the contract refers are used in 
 a peculiar sense, and diflerent from the sense which they ordinarily im- 
 port, — secondly, that evidence of usage is admissible for the purpose of 
 annexing incidents to the contract in matters upon which the contract is 
 silent: but both these rules are subject to the limitation or qualification, 
 that the peculiar sense or meaning which it is proposed by the evidence to 
 attach to the words of the contract, must not vary or contradict, expressly 
 or by implication, the terms of the written contract." [Crowder, J. 
 What is there here to shew that the parties stipulated for any particular 
 determination of the contract?] The proviso shews that they contemplated 
 that it should not be put an end to until the expiration of the year. 
 [Byles, J. It shews rather that they contemplated the probability of its 
 continuance until the end of the year.] In the case of a clerk, a general 
 hiring is a hiring for a year: Beeston v. Collyer, 12 J. B. Moore, 552, 4 
 Bingh. 309. In The King v. Droitwich, 3 M. & Selw. 243, Lord Ellen- 
 borough says: "I take the rule of law to be, that, if no particular time is 
 expressed for the continuance of the service, or is reasonably to be implied, 
 a hiring for a year is to be intended." In Siidling v. Lord Iluntingfield, 
 1 C. M. & R. 20, A. on the 20th of July, made proposals in writing (un- 
 signed) to B., to enter his ser\'ice as bailiff for a year : B. took the proposals 
 and went away, and entered into A.'s service on the 24th of July : and it 
 was held that this was a contract on the 20th, not to be performed within 
 the space of one year from the making, and within the 4th section of the 
 Statute of Frauds. In Fawcett v. Cash, 5 B. & Ad. 908, a general hiring
 
 SECT. l] PARKER V. IBBETSON. 731 
 
 of ;i warehouseman, "the employer engaging to pay 12/. lO*'. per month 
 for the first year, and advance 10/. per annum until the salary should 
 be 180/., was liold to be a hiring for a year. This subject undoi-wt'nt 
 considerable discussion in Baxter v. Nurse, 7 Scott N. R. 801, G J\l. & (!. 
 935. Here, all the witnesses who were interrogated upon the subject 
 negatived the application of the custom for a month's notice to the case 
 of an agreement with the special stipulation contained in the agrcomont 
 in this case. If this be a question for the jury, they have decided it 
 for the plaintiff"'. 
 
 Huyh Hill, Q.C., and Bidler, were not called upon. 
 
 Crowder, J. I am of opinion that this rule nmst be made absolute. 
 The question arises in an action l>rought upon an agreement entered into 
 between a clerk or servant and his employer in a certain trade, which 
 agreement is in writing; and the contention at the ti'ial was as to the 
 existence of the custom stated in the fiftli plea, and its application to the 
 contract before the court. The jury were asked certain questions, and 
 invited to draw certain conclusions. These were, whether the custom was 
 proved, and whether, if proved, it was applicable to the special terms of 
 this contract. On the part of the defendant, it is contended that this 
 latter was not a que.stion for the jury, but for the Court; and I am of th;it 
 opinion. Looking at the evidence, it seems to have been established that 
 there was a general custom in the trade that a yearly hiring might be put 
 an end to by either party upon a month's notice. It is insisted on the 
 part of the plaintiff", that, assunjing such a custom to exist, the special 
 terms of this agreement exclude the application of it to this case. It 
 seems to me that there is no foundation for tliat argument. Tiie first part 
 of the contract amounts simply to an engagement on the part of the plain- 
 tiff" to serve the defendant as agent at the salary of 1.50/. per annum: 
 then follows a proviso, that if, "at the end of the year the said Henry 
 Ibbetson & Co. (the defendant) find the said R. A. Parker (the plaintiff) 
 has done sufficient business to justify them in recompensing by making up 
 his salary to 180/., to do so, being a donation of 30/. to his present stipu- 
 lated amount of 1.50/." Reading this agreement, — and its construction is 
 for the Court, and not for the jury, — it seems to me to be simply an agree- 
 ment for a yearly hiring at a yearly salary ; and that there is nothing in 
 the prov-iso to alter the nature and character of the agreement: it is a 
 mere statement that the defendant will at the end of the year, if ho shall 
 see fit, make the plaintiff" a present of 30/. It is clear that this 30/. could 
 not have been recovered by action, if the service had lasted until the end 
 of the year. The simple question is, whether, looking at the custom 
 
 ' In Addison on Contracts, 4th edit. 430, it is laid down, upon the authority of 
 a case of Johnson v. BUnkcnsopp, 5 Jurist, 870, that, "If the contract is put into 
 writing, the customary power of defeasance is impliedly annexed to the express terms of 
 the written agreement, unless the custom is excluded by express words."
 
 732 PARKER V. IBBETSON. [CHAP. VII 
 
 proved, which is general, there is anything in the written agreement to 
 exclude it. I see nothing in it that can have that effect. The proviso 
 cannot exclude it: tliat has no reference to dismissal. Then, if there is 
 nothing in the contract that is inconsistent with the application of the 
 general custom, it is the same as if the custom had formed part of the 
 written agreement. This case must follow the ordinary rule, that, where- 
 ever a contract is made in a particular trade, all customs which regulate 
 that trade are tacitly incorporated into the contract, unless by express 
 terms excluded. There was nothing to warrant the conclusion of the jury ; 
 and consequently the rule will be made absolute, not, however, to enter a 
 verdict for the defendant, no leave having been reserved, but for a new 
 trial. 
 
 WiLLES, J. I am entirely of the same opinion. The fact of the plain- 
 tiff having been engaged at a yearly salary under an agreement which has 
 been reduced into writing, is clearly not enough to exclude the custom, 
 which was proved to be general, to determine a yearly hiring by giving a 
 month's notice, — just as in the case of domestic servants, where, though a 
 general hiring is presumed to be a hiring for a year, the service may 
 nevertheless be put an end to at any time by a month's notice. The 
 question is whether the application of that general custom to the particular 
 case is excluded by the concluding words of the agreement, which provide, 
 that, at the end of the year, if the employer is satisfied with the amount of 
 business done, he will make an addition of 30^. to the stipulated salary. 
 Would that proviso be inconsistent witli the agreement going on to say 
 that the master should still be at liberty, if so minded, to dismiss the ser- 
 vant at any time during the year, upon giving him a month's notice? 
 Clearly not. The custom, being proved, becomes part and parcel of the 
 contract. The jury had no right to take upon themselves to say tliat the 
 special contract excluded the custom. The evidence upon which that con- 
 clusion was founded does not in fact negative the application of the custom 
 to a hiring under a contract like this. The witness merely stated tliat he 
 did not know of an instance where under such an agreement as the present 
 the custom had been acted upon. 
 
 Byles, J. In cases of this nature, two questions generally arise, — the 
 one, a question of law, whether the terms of the agreement may admit or 
 must necessarily exclude the custom, — the other, one of fact, whether, if 
 the agreement may admit the custom, the custom extends to the particular 
 agreement. I do not therefore see that the learned judge was wrong in 
 leaving this question to the jury. The evidence of the custom was irre- 
 sistibly strong; and, although the jury might, upon proper evidence, have 
 found a hmited custom, there was no evidence of any such limitation here. 
 
 Sule absolute for a neic trial.
 
 SECT, l] NUGENT V. SMITH. 733 
 
 NUGENT V. SMITH. 
 In the Court of Appeal, ]\Iay 29, 1876. 
 
 [Reported in Law Reports, 1 Common Pleas Dirision, 423.] 
 
 [Thls was an appeal from a decision of the Court of Common Pleas, in 
 favour of the plaintifls. The facts are stated in the judgment of the Lord 
 Chief Justice. The arguments are omitted. Ed.] 
 
 CoCKBURN, C. J. This case involves a question of considerable im- 
 portance as regards the law relating to carriers by sea, but the facts are 
 few and simple. Tlie plaintiff, being the owner of two horses, and having 
 occasion to send them from London to Aberdeen, shipped them on board a 
 steamship belonging to the company of which the defendant is the repre- 
 sentative, plying regularly as a general ship between the two ports. The 
 horses were shipped without any bill of lading. In the course of the 
 voyage a storm of more than ordinary violence arose ; and partly from the 
 rolling of the vessel in the heavy sea, partly from struggling caused by ex- 
 cessive fright, one of the animals, a mare, received injuries from whicli she 
 died. It is to recover damages in respect of her loss that this action is 
 brought. 
 
 The jury, in answer to a question specifically put to them, have ex- 
 pressly negatived any want of due care on the part of the defendant, 
 either in taking proper measures beforehand to protect the horses from the 
 effect of tempestuous weather, or in doing all that could be done to sa\'e 
 them from the consequences of it after it had come on. A further ques- 
 tion put to the jury was, whether there was any known means, thougli not 
 ordinarily used in the conveyance of horses by people of ordinary care and 
 skill, by which the defendant could have prevented the injury to the mare, 
 but to this question the jury returned no answer. 
 
 The question is, whether, on this state of facts, the sliipowners are 
 liable. 
 
 For the defendant, it was insisted that the storm, which was the 
 primary, and in a partial degree the proximate, cause of tlie loss nmst be 
 taken to have been an "act of God" within the legal meaning of that 
 term, so as, all due care liaving been taken to con\ey the mare safely, to 
 afford immunity to the defendant's company as carriers from liability in 
 respect of the loss complained of ; and the question to be determined is, 
 whether this contention is well founded. 
 
 The judgment of the Common Pleas Division in favour of the plaintiff, 
 as delivered by Mr. Justice Brett, involves, if I rightly understand it, tbe 
 following propositions : 1. That the Roman law relating to bailments lias 
 been adopted by our Courts as part of the conmion law of England ;
 
 734 NUGENT V. SMITH. [CHAP. VII 
 
 2. Tliiit, liy the Uoiiiau hiw, tlie owners of all ships, whether common carriers 
 or not, are equally liable for loss by inevitable accident ; 3. That such is 
 the rule of Englisli law as derived from the Roman law, and as evidenced 
 by English authorities; 4. That, to bring the cause of damage or loss 
 within the meaning of the term "act of God," so as to give immunity to 
 the carrier, the damage or loss in question must have been caused directly 
 and exclusively by such a direct and violent and sudden and irresistible 
 act of Nature as the defendant could not, by any amount of ability, fore- 
 see would happen, or, if he could foresee that it would happen, he could 
 not by any amount of care and skill resist, so as to prevent its effect ; 
 5. That, notwithstanding the inability of the jury to agree to an answer 
 to the fifth question left to them, the defendant has in this case failed to 
 satisfy the burden of proof cast upon him, so as to bring himself clearly 
 within the definition, as it is impossible to say that no human ability could 
 foresee the reasonable probability of the happening of rough weather on 
 the voyage, and that a horse at sea might l)e frightened by it, or that no 
 human ability could prevent injury to a frightened horse in such weather 
 as occurred. 
 
 In no part of this reasoning am I able to concur. But before I 
 proceed to deal with it, I must observe that, as the vessel by which the 
 mare was shipped was one of a line of steamers plying habitually between 
 given ports and carrying tlie goods of all comers as a general ship, and as 
 from this it necessarily follows that the owners were common carriers, it was 
 altogether unnecessary to the decision of the present case to determine 
 the question so elaborately discussed in the judgment of Mr. Justice 
 Brett as to the liability of the owner of a ship, not being a general ship, 
 but one hired to carry specific cargo on a particular voyage, to make good 
 loss or damage arising from inevitable accident. 
 
 The question being, however, one of considerable importance — though 
 its importance is materially lessened by the general practice of ascertain- 
 ing and limiting the liability of the shipowner by charterparty or bill of 
 lading — and the question not having before presented itself for judicial 
 decision, I think it right to express my dissent from the reasoning of the 
 Court below ; the more so as, for the opinion thus expressed, I not only 
 fail to discover any authority whatever, but find all jurists who treat of 
 this form of bailment carefully distinguishing between the common carrier 
 and the private ship. Parsons, a writer of considerable authority on this 
 subject, defines a common carrier to be "one who offers to carry goods for 
 any person between certain termini and on a certain route." " He is 
 bound to carry for all who tender to him goods and the price of carriage, 
 and insures these goods against all loss but that arising from the act of God 
 or the public enemy, and lias a lien on the goods for the price of the 
 carriage." " If either of these elements is wanting, we say the carrier is 
 not a common carrier, either by land or by water." " If we are right in 
 this," he adds, "no vessel will be a common carrier that does not ply
 
 SECT. l] NUGENT V. SMITH. 735 
 
 regularly, alone or in connection with otliers, on some delinite route, or 
 between two certain termini'." 
 
 Story seems to be of a like opinion. " When it is said," he observes, 
 " that the owners and masters of ships are deemed common carriers, it is 
 to be understood of such ships as are employed as general ships, or for the 
 transportation of merchandise for persons in general, such as vessels cm- 
 ployed in the coasting trade, or foreign trade, or on the general freiglit- 
 ing business, for all persons offering goods on freight for the port of 
 destination." " But if the owner of a ship employs it on his account 
 generally, or if he lets the tonnage, with a small exception, to a single 
 person, and then, for the accommodation of a particular individual, he 
 takes goods on board for freight, not receiving them for persons in 
 general, he will not be deemed a common carrier, but a mere private 
 carrier'." 
 
 So Angell, speaking of shipowners as common carriers, says : "When it 
 is said that the owners and masters of ships are treated as common 
 carriers, it is to be understood of such ships as are employed for the trans- 
 portation of merchandise for all persons indift'erently. Should the owner 
 of a ship employ it on his own account, and for the special accommodation 
 of a particular individual, take goods on board for freight, not receiving 
 them from all persons indifferently, he does not come within the definition 
 of a common carrier, he not holding himself out as engaged in a public 
 employment'^." But the learned author does not say what would be the 
 case where a shipowner holds himself out as ready to send his vessel with 
 cargo to any place that may be agreed on, on a private bargain, and not as 
 a general ship. 
 
 In the absence of all connnon-law authority for the projjosition tliat by 
 the law of England every carrier by sea is subject to the .same liability as 
 the common carrier, as asserted in the judgment below, the authority of 
 the Roman law is invoked ; but this law, on which so much stress is laid 
 in the judgment of the Court of Common Pleas, affords no suppoi-t to tliis 
 doctrine. In the first place, it is a misapprehension to suppose that the 
 law of England relating to the liability of common carriers was derived 
 from the Roman law ; for tlie law relating to it was first estal)lislicd by 
 our Courts with reference to carriers by land, on whom the Roman law, as 
 is well known, imposed no liability in respect of loss beyond that of other 
 bailees for reward. In the second place, tiw. Roman law madt; no di.s- 
 tinction between inevitable accident arising from what in our law is 
 termed the " act of God " and inevitable accident arising from otiier 
 causes, but, on the contrary, afforded immunity to the carrier, witliout 
 distinction, whenever the loss resulted from " casus fortuitus," or, as it is 
 also called, " damnum fatale," or " vis major " — unforeseen and xinavoid- 
 able accident. The language of the Praetorian Edict, as given in the 
 
 1 Parsons, Shipping, p. 245. - Story on Bailments, s. 501. 
 
 ^ Angell on Carriers, s. 89.
 
 736 NUGENT V. SMITH. [CHAP. VII 
 
 Digest, iniglit indeed, if it stood alone, lead to the supposition that the 
 Haliility of the carrier l>y sea was unlimited: "Ait prator : nautie, cau- 
 pones, stabularii quod oujusque salvuni fore receperint, nisi restituant, in 
 eos judicium dabo." (Dig. iv. tit. 9.) But Ulpian, who gives the words 
 quoted in his treatise on the Edict, explains their meaning : " Hoc edicto 
 omni mode qui recepit tenetur, etiam si sine culpa ejus res periit vel 
 damnum datum est, nisi si quid danino fatali contingit. Inde Labeo 
 scribit, si quid naufragio aut per vim piratarum perierit, non esse iniquum 
 exceptionem ei dari. Idem erit dicendum si in stabulo aut in caupona vis 
 major contigerit." 
 
 In tlie one case the absence of culpa makes no difference. In the 
 other it does. No difference of opinion exists an\ong civilians as to the 
 law on this subject. There is no doubt that ine\'itable accident — damnum 
 fatale, casus fortuitus, vis major — for these are synonomous terms — exempt 
 the carrier from liability. "Casus fortuitus," says Averani, "appellatur 
 vis major, vis divina, fatum, damnum fatale, fatalitas." 
 
 Such is the Roman law, and such is the existing law of all the nations 
 whicli have adopted the Roman law — France, Spain, Italy, Geimany, 
 Holland, and, to come nearer liome, Scotland. It is embodied in the Code 
 Civil of France. Treating of carriers by land and by water the Code says 
 (Art. 1754): "lis sont responsables de la perte et des avaries des choses 
 qui leur sont confiees, a moins qu'ils ue prouvent qu'elles out ete perdues 
 et avariees par cas fortuit ou force majeure." 
 
 That such is the law of Scotland we learn from what is said in 
 Erskine's Institutes, pp. 591, 592, n., from which it appears that by that 
 law, not only storm and pirates, but also liousebreaking and fire, constitute 
 damnum fatale, which will exonerate the innkeeper or carrier. (See also 
 the Appendix to Stair's Institutes, by More, p. 57.) 
 
 But not only does this essential difference between the Roman law 
 and our own suffice to shew that, so far as the liability of carriers is con- 
 cerned, our law has not been derived from the Roman : as matter of legal 
 history we know that the more rigorous law of later times, first intro- 
 duced duiing the reign of Elizabeth, was, in the first instance, established 
 with reference to carriers by land to whom by the Roman law no sucli 
 liability attached. It was not till the ensuing reign, in the eleventh of 
 James I., that it was decided, in Rich v. Kneeland^, that the common 
 hoyman or carrier by water stood on the same footing as a common carrier 
 by land, and rightly, for in principle there could be no difference between 
 them. The next case in point of date, and it is the first case in the books 
 in which the liability of the owner of a sea-going ship comes in question, 
 is the well-known case of Morse v. Slv^' in which it was held, after a trial 
 at bar, that wliere a ship lying in the Thames was boarded by robbers, who 
 took the plaintiff's goods which had been loaded on board, in an action 
 brought against the master, the plaintiff was entitled to recover. And it 
 1 Cro. Jac. 330; Hob. 17. - 1 Vent. 190, 238.
 
 SECT. l] NUGENT I'. SMITH. 7;i7 
 
 certainly surprises me that this case shoidd be relied on as an authority 
 foi- the position that the liability of a common carrier attaches to the 
 shipowner or master where the sliip is not a general sliip ; for tlinugh it is 
 not expressly .said tliat the ship in question was a general ship, wliich has 
 led to the somewhat hasty assumption that she was not, the internal 
 evidence shews conclusively that she was so. In the first place, the 
 declaration is laid on the custom of the realm, and we know that the only 
 custom to which effect had up to that time been given — and that quite in 
 recent times — was in respect of common carriers by land, and still more 
 recently in respect of common carriers by water. Secondly, Hale, C. J., 
 in giving judgment, puts the case as on all fours with that of a common 
 carrier or hoyman, and nowhere says that it is to be treated as that of a 
 private sliip. " He who would take off the ma.ster from tiiis action," says 
 the Chief Justice, " must assign a difference between it and the case of a 
 hoyman, common carrier, or innholder." Doubtless the counsel for the 
 defendant, if the case had been distinguishable on tlie ground that the 
 vessel was not a common ship, would have pointed out the difference, and 
 at all events have taken the point ; and in the corresponding report of the 
 same case in Levinz', the case of Jiicfi v. Kneeland' having been referred 
 to, the Chief Justice is reported to have said that the case "differed not 
 from that of the hoyman." But in the case of Hich v. Knedand' we know 
 that tlie barge or hoy was a common carrier ; and it is obvious that if in 
 Morse v. Slue^ the vessel had been a private one, instead of treating the 
 case as identical with that of the common hoyman, tlie Chief Justice 
 would have put it on the ground that all sea-going vessels were subject to 
 the larger liability. But besides this, there is a circumstance which 
 appears to have been overlooked, which seems decisive to shew tiiat 
 the ship must have been a general ship. It is mentioned in the report in 
 Ventris, that the ship was a vessel of 150 tons burden, bound for Cadiz, 
 and that the goods shipped by the plaintiff consisted of three trunks, 
 containing 400 pairs of silk stockings and 174 lbs. of silk. It seems idle to 
 suppose that a ship of that size would have been hired on sucli a voyage 
 for the purpose of carrying the plaintit}"s three trunks as her entire cargo. 
 There seems, therefore, no reasonable doubt that tlie ship was a general 
 ship. In like manner, in the case of Dale v. HaW^, although the declara- 
 tion was not upon the custom of the realm, but upon the implied obliga- 
 tion to carry safely, it appearing that the defendant was a shipmaster or 
 keelman who carried goods from port to port, the Court decided in favour 
 of the plaintiff, expressly on the liability of the defendant as a common 
 carrier (though the latter was prepared to shew an absence of negligence 
 on his part), on tlie ground that the allegation of the duty of a common 
 carrier "to carry safely" was equivalent to a declaration on the custom of 
 the realm. In the subsequent case of Barclnij v. Cuculla y Gnnn\ wliicli 
 
 1 2 Lev. G9. - Cio. Jac. 330; Hob. 17. ' 1 Vent. 190, '238. 
 
 J 1 WilB. 281. <■' 3 Pong. 389. 
 
 F. ^"l
 
 738 NU«ENT >\ SMITH. [CHAP. VII 
 
 was a case where, as in Morsr. v. Slue', goods had l^een forcibly taken by 
 thieves from a sliip lying in the Thames, on the olyection being taken on 
 behalf of the defendant that lie was not charged in the declaration on the 
 custom of the realm, while there was neither express undertaking nor 
 negligence to make him liable otherwise, the answer of the Court was 
 "that there was no question at the trial as to the ship being a general 
 ship ;" and Lord Mansfield adds that it was impossible to distinguish the 
 case from that of a common carrier. 
 
 Tims far the reported cases as to carriers by sea have been cases of 
 general vessels. The' next in point of time, that of Lyon v. Mells\ was 
 one in which the defendant kept sloops for carrying other persons' goods 
 for hire, and also lighters for carrying such goods to and from his sloops 
 as well as to and from the sloops of other owners. One of these lighters, 
 in which goods of the plaintili' were being conveyed on board of a sloop, 
 proved leaky and took in a quantity of water, and the goods became 
 seriously damaged, and it was also found as a fact that the goods had been 
 negligently stowed. The defendant relied on a notice that he would not 
 be answerable for any loss or damage unless occasioned by want of ordinary 
 care of the master and crew, in which case he would pay 10 per cent, on 
 the loss or damage ; but that persons desirous of having their goods carried 
 free from any risk in respect of loss or damage, whether arising from the 
 act of God or otherwise, might have them so carried on entering into an 
 agreement to pay extra freight in proportion to the risk. No extra freight 
 having been paid, the question was whether the defendant was protected by 
 this notice from liability for more than 10 per cent, of the damage. Nothing 
 in reality turned upon his being a common carrier or subject to the 
 liabilities of a common carrier. Some discussion, it is true, took place 
 on the argument as to whether the defendant was a common carrier or 
 not ; but Lord Ellenborough, in giving judgment, put the matter on 
 the right footing, namely, that a carrier by water impliedly engages 
 that his vessel shall be water-tight, an obligation obviously applicable 
 to all carriers, whether common carriers or otiierwise, and that the 
 defendant could not be taken to have intended by such a notice to claim 
 immunity in respect of his own breach of contract, but only immunity 
 above 10 per cent, for loss or damage arising from the negligence of the 
 master and crew, and total immunity in respect of loss or damage from the 
 act of God or other cause, unless extra freight was paid. The owner no 
 doubt thought his liability that of a common carrier, and, as Lord 
 Ellenborough points out, sought to protect himself accordingly ; but Lord 
 Ellenborough nowhere treats liim as such, but decides the case on a 
 general ground applicable to all carriers, whether common or private. 
 Yet this case is relied on, erroneously as it appears to me, as shewing that 
 a man who lets out a lighter or ship, not to carry the goods of general 
 comers, but to a particular individual on a specific job or contiact, if his 
 ' 1 Vent. I'JO, 238. - 5 East, -VZH.
 
 SECT. l] MTiRXT i: SMITH. 7:59 
 
 liusincss be to let out lighters or sliip.s, is a coiuinon currier, or is at jill 
 events subject to an equal degree of lialiility. 
 
 The last case is that of the Lirer Alhdl Co. v. Jo/in.fon', in whicli the 
 defendant was a barge owner and lot out his vessels for eon\-eyanc(! of 
 goods to any customers wlio applied to him. Each voyage was made 
 under a separate agreement, and a barge was not let to more than one 
 person for the same voyage. The defendant did not ply between any 
 fixed termini, l>ut the customer fixed in each particular case the points of 
 arrival and departure. In an action against the defendant by the plaintifls 
 for not safely and securely carrying certain goods, the Court of Exchequer 
 Chamber lield, affirming the judgment of the Court of Exchequer, that the 
 defendant was a common carrier and liable as such. Mr. Justice lii'ett, 
 differing from the majority, lield that the defendant was not a common 
 carrier, but, asserting the same doctrine as in the judgment now appealed 
 from, lield him liable upon a special custom of the realm attaching to all 
 carriers by sea, of which custom, however, as I have already intimated, I 
 can find no trace whatever. We are, of course, bound by the decision of 
 the Court of Exchequer Chamber in the case referred to as that of a court 
 of appellate jurisdiction, and which, therefore, can only be reviewed by a 
 court of ultimate appeal ; but I cannot help seeing the difficulty which 
 stands in the way of tlie ruling in that case, namely, that it is essential 
 to the character of a common carrier tliat he is bound to carry the goods 
 of all persons applying to him, while it never has been held, and, as it 
 seems to me, could not be held, that a person who lets out vessels or 
 vehicles to individual customers on tlieir application was liable to an action 
 for refusing the use of such vessel or vehicle if required to furnish it. At 
 all events, it is obvious that as the decision of the Coui't of Exchequer 
 Chamber proceeded on the ground that the defendant in that case was a 
 common carrier, the decision is no authority for the position taken in the 
 Court below, that all shipowners are equally liable for loss by inevit- 
 able accident. It is plain that the majority of the Court did not adopt 
 the view of Mr. Justice Brett. Lastly, while it does not lie within our 
 province to criticise the law we have to administer or to question its 
 policy, I cannot but think that we are not called upon to extend a prin- 
 ciple of extreme vigour, peculiar to our own law, and the absence of 
 which in the law of other nations has not been found by experience to 
 lead to the evils for the prevention of whicli the rule of our law was sup- 
 posed to be necessary, further than it has hitherto been applied. I can- 
 not, therefore, concur in the opinion expressed in the judgment delivered 
 by Mr. Justice Brett, that by the law of England all carriers by sea are 
 subject to the liability wliicli by that law undoubtedly attaches to tlie 
 common carrier whether by sea or by land. 
 
 But there being no doubt that in the case before us the shipowner was 
 a common carrier, we liavo now to deal with the question on which tlic^ 
 
 ' Law Kcii. !1 Ex. 338. 
 
 47—2
 
 740 NUGENT r. SMITH. [ciIAT. VII 
 
 decision really turns, namely, whetlier the loss was occasioned by wliat can 
 properly be called the " act of God." 
 
 The definition which is given by Mr. Justice Brett, of what is termed 
 in our law the "act of God " is, tliat it must be such a direct, and violent, 
 and sudden, and irresistible act of Nature as could not by any amount of 
 ability have been foreseen, or if foreseen, could not by any amount of 
 human care and skill have been resisted. The judgment tlien proceeds : 
 " We cannot say, notwithstanding the inability of the jury to agree to an 
 answer to the fifth question left to them, that tlie defendant has in this 
 case satisfied the burden of proof cast upon him so as to bring himself 
 clearly within the definition. It seems to me impossible to say that no' 
 human ability could foresee the reasonable probability of the happening 
 of rough weather on the voyage, and that a horse at sea might be 
 friglitened by it, or that no human ability could prevent injury to a 
 frightened horse in such weather as occurred." 
 
 The exposition here given appears to me too wide as regards the 
 degree of care required of tlie shipowner, and as exacting more tlian can 
 properly be expected of him. 
 
 It is somewhat remarkable that previously to the present case no 
 judicial exposition has occurred of the meaning of the term "act of God," 
 as regards the degree of care to be applied by the carrier in order to entitle 
 liimself to the benefit of its protection. We must endeavour to lay down 
 an intelligible rule. 
 
 That a storm at sea is included in the term "act of God," can admit of 
 no doubt whatever. Storm and tempest have always been mentioned in 
 dealing with this suliject as among the instances of vis major coming under 
 the denomination of " act of God." But it is equally true, as has already 
 been pointed out, that it is not under all circumstances that inevitable 
 accident arising from tlie so-called act of God will, any more than inevit- 
 able accident in general by the Roman and continental law, afford im- 
 munity to the carrier. This must depend on his ability to avert the eflects 
 of the vis major, and the degree of diligence which he is bound to apply 
 to that end. 
 
 It is at once obvious, as was pointed out by Lord Mansfield in Fonvard 
 v. PitturcV, that all causes of inevitable accident — "casus fortuitus" — may 
 be divided into two classes — those which are occasioned by the elementary 
 forces of nature unconnected with the agency of man or other cause, and 
 those which have their origin either in the wliole or in part in the agency of 
 man, wliether in acts of commission or omission, of nonfeasance or of mis- 
 feasance, or in any other cause independent of the agency of natural 
 forces. 
 
 It is obvious that it would be altogether incongruous to apply the term 
 "act of God " to the latter class of inevitable accident. It is equally clear 
 
 > 1 T. Ti. 27.
 
 SECT. l] NUGENT V. SMITH. 741 
 
 tliat storm ami tempest belong to the class to which (he term "act of God" 
 is properly applicable. 
 
 On the other hand, it must be admitted that it is not because an 
 accident is occasioned by the agency of nature, and therefore by what may 
 be termed the "act of God," that it nece.ssarily follows that the carrier is 
 entitled to immunity. The rain which fertilises the earth and the wind 
 which enables the ship to navigate the ocean are as much within the term 
 " act of God " as the rainfall which causes a river to burst its banks and 
 carry destruction over a wliole district, or the cyclone that drives a ship 
 against a rock or sends it to the bottom. Yet the carrier who by the rule 
 is entitled to protection in the latter case, would clearly not be able to 
 claim it in case of damage occurring in the former. For here another 
 principle comes into play. The carrier is bound to do his utmost to 
 protect goods committed to his charge from loss or damage, and if he fails 
 herein he becomes liable from the nature of his contract. In the one case 
 he can protect the goods by proper care, in the other it is beyond his 
 power to do so. If by his default in omitting to take the necessary care loss 
 or damage ensues, he remains responsible, though the so-called act of God 
 may have been the immediate cause of the mischief. If the ship is un- 
 seaworthy, and hence perishes from the storm which it otherwise would 
 have weathered ; if the carrier by undue deviation or delay exposes him- 
 self to the danger which he otherwise would have avoided ; or if by his 
 rashness he unnecessarily encounters it, as by putting to sea in a raging 
 storm, the loss cannot be said to be due to the act of God alone, and tiie 
 carrier cannot have the benefit of the exception. This being granted, the 
 question arises as to the degree of care which is to be required of him to 
 protect him from liability in respect of loss arising from the act of God. 
 Not only, as has been observed, has there been no judicial exposition of 
 the meaning of the term " act of God " as regards the degree of care to 
 be applied by the carrier in order to entitle himself to its protection, but 
 the text-writers, both English and American, are, for the most part, silent 
 on the subject and afford little or no assistance. 
 
 Being here, however, on common ground with the civilians, so far as 
 one head of inevitable accident is concerned, it may be of use, while 
 endeavouring more clearly to fix the limits of that class of inevitable 
 accidents which comes under the head of " act of God," to turn to 
 their views on the subject with reference to inevitable accidents in 
 general. 
 
 As the result of the different instances of casus fortuitus which occur 
 in the Digest, Vinnius gives the following definition: " Ca.sum fortuitura 
 definimus ounie quod humano cceptu pnevideri non potest, nee cui proviso 
 potest resisti " (Partit. Juris, lib. ii. c. G6). He enumerates various in- 
 stances : "Casus fortuiti varii sunt, veluti a vi ventorum, turbinum, 
 pluviarum, grandinum, fulminum, lestus, frigoris, et similium calamitatum 
 qu;e civlitus inunittuntur. Nostri vim divinam dixcrunt. Gra'ci, Otov
 
 742 NUGENT ('. SMITH. [CIIAP. VII 
 
 /St'tti/. Item ii;iufi-a,uiii, .i([ii;irum inuiulationes, inccndi.i, inortcs iiniuialiuni, 
 ruinre fcclium, fundnruiii chasmata, incuisus hostiuiu, pra'clonum impetus. 
 His adde danma omnia a piivatis illata, qu:e quominus iiiferientur nulla, 
 cura caveri potest." Baldus (Qusest. 12, no. 4), gives the following 
 doHnition : " Casus fortuitus est accidens, quod per custodiam, curam, 
 vel diligentiam mentis liumanie non potest evitari ab eo qui patitur." 
 
 In our own law on this subject judicial authority, as has been stated, 
 is wanting, and the text writers, English and American, with one ex- 
 ception, aflbrd little or no assistance. Story, however, in speaking of the 
 perils of the sea, iu which storm ancl'lempest are of course included, and 
 consequently to a great extent the iiTWances of inevitable accident at sea 
 which come under the term "act of God," uses the following language: 
 "Theplirase 'perils of the sea,' whether understood in its most limited 
 sense, as importing a loss by natural accidents peculiar to that element, or 
 whether understood in its more extended sense as including inevitable 
 accidents occurring upon that element, must still in either case be under- 
 stood to include such losses only to the goods on board as are of an extra- 
 ordinary nature or arise from some irresistible force, or from inevitable 
 accident, or from some overwhelming power which cannot be guarded 
 against by ordinary exertions of human skill and prudence. Hence it is 
 that if the loss occurs by a peril of the sea which miglit have been avoided 
 by the exercise of any reasonable skill or diligence at the time when it 
 occurred, it is not deemed to be in the sense of the phrase such a loss by 
 the perils of the sea as will exempt the carrier from liability, but rather 
 a loss by the gross negligence of the partv'." Story, it will be observed, 
 here speaks only of " ordinary exertion of human skill and prudence and 
 the exercise of reasonalile skill and diligence." 
 
 In my opinion this is the true view of the matter, and what Story here 
 says of perils of the sea applies, I think, equally to the perils of the sea 
 coming within the designation of " acts of God." In other words, all that 
 can be required of the carrier is that he shall do all that is i-easonably 
 and practically possible to insure the safety of the goods. If he uses all 
 the kno^vn means to which prudent and experienced carriers ordinarily 
 have recourse, he does all that can be reasonably required of him ; and if, 
 under such circumstances, he is overpowered by storm or other natural 
 agency, he is within the rule which gives immunity from the efl'ects of 
 such vis major as the act of God. I do not think that because some one 
 may have discovered some more efficient method of securing the goods 
 which has not become generally known, or because it cannot be proved 
 that if the skill and ingenuity of engineers or others were directed to the 
 subject something more eificient might not be produced, that the carrier 
 can be made liable. I find no authority for saying that the vis major 
 must be such as "no amount of human care or skill could have resisted," 
 
 ' Story on Bailments, -512 (n).
 
 SECT. l] NUGENT i: SMITH. 74:5 
 
 or tliu injuiy siu'h .-is "no Iiuiikui ability could li:i\i! prevented," and 1 
 think this construction of the rule erroneous. 
 
 That the defendants here took all the care that could rcasonalily bo 
 required of them to insure the safety of the mare is, I think, involved in 
 the finding of the jury, directly negativing negligence, and I think that it 
 was not incunilient on the defendants to establish more than is implied by 
 that finding. 
 
 The matter becomes, however, somewhat complicated from the fact that 
 the jury have found that the death of the mare is to lie ascribed toinjui'ics 
 caused partly by the rolling of the vessel, partly by struggles of the animal 
 occasioned by fright, leaving it doubtful whether the fright was the natural 
 effect of the storm or whether it arose from an uimsual degree of timidity 
 peculiar to the animal and in excess of what would generally be displayed 
 by horses. But the plaintiff is in this dilemma : if the fright which led 
 to the strugsjling of the mare was in excess of what is usual in horses on 
 ship-board in a storm, then the rule applies that the carrier is not liable 
 where the thing carried perishes or sustains damage, without any fault 
 of his, by reason of some quality inherent in its nature, and which it was 
 not possible for him to guard against. If, on the other hand, the fright 
 was the natural effect of the storm and of the agitation of the ship, then it 
 was the immediate consequence of the storm, and tiie injui-ies occasioned 
 by the fright are sufficiently closely connected with the storm, in otlier 
 words with the act of God, to afford protection to the carrier. If tlie 
 disaster is the result of a combination of causes for neither of which the 
 carrier was responsible, he cannot be made liable any more than if it had 
 resulted from either of them alone. 
 
 For these reasons I am of opinion that the judgment of the Court 
 below must be reversed, and judgment entered for the defendant. 
 
 James, L. J. I am of the same opinion. To say that a common carrier 
 is not liable for the "act of God" is merely a short way of expressing this 
 projiosition : — A common carrier is not liable for any accident as to whicli 
 he can shew that it was due to natural causes directly and exclusively, 
 without human intervention, and that it could not have been prevented by 
 any amount of foresight and pains and care reasonably to be expected from 
 hiui. In this case the defendant lias made this out'. 
 
 Jndi/ment reversed. 
 
 Tlif ullicr jiidgmeutti aic omitted. Ei>.
 
 744' mayne's case. [(;hap. vii 
 
 SECTION II. 
 
 DISCHAEGE OP CONTRACT BY BREACU. 
 
 SIR ANTHONY MAYNE'S CASE. 
 In the Queen's Bench, Easter Term, 1596. 
 
 [Reported in 5 Heports, 20 h.] 
 
 The case in effect was, tliat Sir Anthony Mayne did lease certain land 
 to Scott for twenty-one years by indenture, and covenanted that at any 
 time during the life of Scott, upon surrender of his lease, Sir Anthony, 
 Ac, would make a new lease during the residue of the years, and bound 
 himself to perform the covenants, ifec. And now in debt on the said obli- 
 gation by Scott against Sir Anthony, he pleaded that Scott did not sur- 
 render, &c. To which Scott replied, and said, that after the said lease 
 Sir Anthony had accepted a fine sur conusans de droit, come ceo, &c., and 
 by the same fine granted and rendered the land to the conusee for eighty 
 years: upon which the defendant did demur in law. And it was adjudged 
 for the plaintifi". And Ln tliis case three points were resolved : — 
 
 1. That Sir Anthony Mayne had broken his covenant without any 
 surrender made ; for, by the said fine levied by him for eighty years, he 
 liad disabled liimself either to take a surrender or to make a new lease; 
 and the law will not enforce any one to do a thing which will be vain and 
 fruitless; lex neminem cogit ad rana seu inutUia peragendct: but it would 
 be vain to compel him to make a surrender to liim who cannot take it ; 
 and altliough the lessee in tliis case by the words of the indenture ouglit 
 to do tlie first act, scil. to make the surrender, yet when the lessor hatli 
 disabled himself, not only to take the surrender, but also to make a new 
 lease according to the covenant, for this cause the lessor's covenant is 
 broken without any surrender made. Vide 32 E. 3, Barre 264, and 21 E. 
 4, 55a. If you are bound to enfeofT me of the manor of D. before such a 
 feast, if you make a feoft'ment of the said manor to another before the said 
 feast, you have forfeited your obligation, although you repurchase the land 
 again before the feast, because you were once disabled to make the feoff- 
 ment. And therewith agreeth Temp. E. 1, Covenant 29. A man leased 
 a manor for years, and the lessee covenanted to keep the houses of the 
 manor and as much as was in the manor in as good plight as he found 
 them ; during the term the lessee committed waste in the houses, and in 
 cutting of oaks; the lessor brought an action of covenant before the end of 
 tlie term for tlie oaks, because for tliem it was impossible that the covenant
 
 se(;t. ii] mavou v. pyne. 745 
 
 sliould be peifoniuid ; otlierwise it is of tlio liouscs; and therewith agree 
 F. N. B. 145 K, and 13 E. 3, Tit. Covenant 2. 
 
 2. It was resolved, if a man seised of lands in fee covenants to en- 
 feoff J. S. of them upon request, and afterwards he makes a feoffment in 
 fee of tlie said lands; now in this case J. 8. shall have an action of cove- 
 nant without request. And tliat in effect is all ojie with the principal 
 case. 
 
 3. It was resolved that, in tlie case at bar, if the said term of eiglity 
 years were but an interest of a future term, so that Scott notwithstanding 
 that might make the surrender, yet in such case Scott should have an 
 action of covenant without making any surrender; for true it is that he 
 may surrender; but also true it is that Sir Anthony after such surrender 
 cannot make the new lease, which was the effect that the surrender should 
 produce; and therefore inasmuch as the lessor hath disabled himself to 
 make a new lease, which is the effect and end of the surrender, and that 
 which he ought to do on his part, the lessee shall not be enforced to make 
 the surrender, which is the first thing to be done on his part, for by the 
 surrender he would lose liis old term without a possibility of having the 
 new according the lessor's covenant. And therewith agreeth 14 H. 4, 
 19 a. J., parson of the church of G., was bound in an obligation of £100 
 to the prior of E. ; the condition was that if the parson resign his church 
 witiiin certain time to the prior for a certain pension as they could agree, 
 that then the obligation should be void ; and afterwards and within the 
 time the prior and parson agreed of a pension of £r), yet the parson did 
 refuse to resign. And the opinion of the whole Court was that, although 
 they had agreed of the pension, yet the parson is not bound to resign 
 until he be sure of the pension, and that he cannot be without deed. 
 And therefore in such case the parson is not obliged to resign until the prior 
 liath tendered him a deed of the said pension, by which he might be sui-e of it. 
 
 MAVOR, ASSIGNEE OF W. H. PYNE, v. PYNE. 
 In the Common Pleas, November 9, 1825. 
 
 [Ixcported in 3 Bingham, 288.] 
 
 This was an action by the assignees of a bankrupt, for goods sold by 
 jiiin to the defendant. The pleas were first, the general issue. Secondly, 
 that after the promises stated in the declaration, and before tlie commence- 
 ment of the action, and before W. H. Pyne became a bankrupt, he released 
 the defendant from all actions. To which it was replied, that AV. II. 
 Pvne had become bankrupt before the deed of release; and w\ this replica-
 
 746 ilAVOU V. PYNE. [CHAP. VII 
 
 tion issue was joined. At the trial before Best, C. J., Guildhall sittings 
 after Trinity term, it appeared that the bankrupt was author of a work 
 called "The History of the Royal Residences," which he published by subscrip- 
 tion in twenty-four numbers, at one guinea a number. The numbers 
 were printed, and left at the publisher's house ready for delivery monthly. 
 Each subscriber received his numbers at the house of the bankrupt. The 
 whole twenty-four numbers were completed. The defendant only took 
 away eight numbers, although he was informed that the remainder were 
 ready for him. With respect to the release, although executed more than 
 two months before the suing out of the commission, it appeared to have 
 been executed after an act of bankruptcy; the defendant knew that the 
 bankrupt was insolvent at the time of executing it; and it did not appear 
 that 100/. of the petitioning creditor's debt had been contracted within six 
 years before the suing out of the commission of bankruptcy. 
 
 The jury having found a verdict for the plaintiff on both the issues, 
 Vaucjhan, Serjt., moved for a nonsuit on several grounds. Thirdly', 
 that the assignees could not sue the defendant till the bankrupt's part of 
 the contract was performed by the delivery of the wliole twenty-four 
 numbers; and, lastly, that the contract not having been reduced to writing 
 was void by the Statute of Frauds, as the work was not to be completed 
 within a year. Boydell v. Drummond-. 
 
 Rest, C. J. Tlie third objection was, that this action could not be 
 maintained, the bankrupt not having performed his part of the contract. 
 The short answer to this objection is, that the defendant put an end to the 
 contract, consequently the plaintifl" was entitled to recover for the amount 
 of what he had performed. 
 
 If a man agrees to deliver me one hundred quarters of corn, and after 
 I have received ten quarters, I decline taking any more, he is at all events 
 entitled to recover against me the value of the ten that I have received. 
 The bankrupt was the author of a work called "The History of Royal Resi- 
 dences,"which he published by subscription in twenty-four numbers, at the 
 price of one guinea each number. The numbers were printed and left at 
 the publisher's house ready for delivery monthly. Each subscriber re- 
 ceived his numbers at tlie house of the bankrupt. The whole twenty-four 
 numbers were completed. 
 
 The defendant only took away eight nunibers, although he was in- 
 formed tliat the remaining numbers were ready for him. 
 
 The defendant broke his bargain in not taking the otlier numbers, 
 and was liable to pay for those he liad, and the verdict is only for the 
 eight that were received by him. 
 
 The case of Boydell v. Drummond, which has been referred to liy the 
 defendant's counsel, shews that the Statute of Frauds will prevent plaintifl's 
 
 ■ Only so much of the case is given as relates to this question. Es: 
 - 11 East. 11-'.
 
 SECT. 11] I'LANCni: r. COLBURN. 747 
 
 t'l'oiu recovering on the original contract, wlierc it was not in writiiii,', and 
 not to be performed within a year. But neither tlie statute nor tlie case 
 shew that plaintifl's are not to be paid for numbers actually received by 
 the defendant. In Buijdell v. Druiiimond, the defendant had paid for all 
 the numbers of the work subscribed for that he had received; and the 
 tiuestion was, whether the executory part of the contract was binding, and 
 the defendant bound to take and pay for the residue of the work. The 
 reasoning of the judges in that case is against the argument of the defen- 
 dant's counsel. They consider a subscription of this sort as a divisible 
 contract. 
 
 The meaning of the contracting parties, when tliey say twenty-four 
 numbers, at one guinea each number, is, that the publisher shall be paid as 
 the numbers come out, not that he is to wait until the work is complete 
 before he receives any money. 
 
 One of the reasons for publishing in numbers is, that the publishers have 
 not sufficient capital to complete an expensive work. Many of the most 
 beautiful works which the public now possess, could never have been 
 brouglit out unless the publishers had been paid as the nuuiliers were 
 delivered. 
 
 If the defendant had not put an end to the conti'act, I should have no 
 dilliculty in saying, tliat the bankrupt was entitled to be paid one guinea 
 by him for every number that lie received. 
 
 The rest of the Court concui-ring, the rule was 
 
 licfnscd. 
 
 PLANCHE V. COLBURN AND ANOTHER. 
 In the Ccmmon Pleas, Novemdeu 5, \^'i\. 
 
 [lu'lwrtt'd in. 8 lUuijham^ 1-1.] 
 
 The defendants had commenced a periodical publication, under the 
 name of "The Juvenile Library," and luid engaged the jilaintili' to w rile 
 for it a volume upon Costume and Ancient Armour. The declaration 
 stated, that the defendant Iiad engaged the plaintiff for 100/. to write 
 this work for publication in "The Juvenile Library;" and alleged for 
 breach, that though the autlior wrote a part, and was ready and willing 
 to complete and deliver the whole for insertion in that publication, yet 
 that the defendants would not publisli it tliere, and refused to pay tiu^ 
 plaintiff the sum of 100/., which they had previously agreed he should 
 receive. There were tlien the connnon counts for work and labour.
 
 748 PI.ANCHE V. COLBUllN. [CHAP. VII 
 
 At the trial before Tiiidal, C. J., Middlesejc sittings after last term, it 
 appeared that the plaintitt', after entering ftlto the engagement stated in 
 the declaration, connuenced and completed a considerable portion of the 
 work; performed a journey to inspect a collection of ancient armour, and 
 made drawings therefrom ; but never tendered or delivered his perform- 
 ance to tlie defendants, tliey having finally abandoned the publication of 
 "The Juvenile Library," upon the ill success of the early numbers of the 
 work. An attempt was made to shew that the plaintifl' had entered into 
 a new contract. 
 
 The Chief Justice left it to the jury to say, whether the work had been 
 abandoned by the defendants, and whether the plaintiff had entered into 
 any new contract; and a verdict having been found for hiai, with 50/. 
 damages, 
 
 Spcmkie, Serjt., moved to set it aside, on tlie ground that the plaintiff 
 could not recover on the special contract, for want of having tendered or 
 delivered the work pursuant to the contract; and he could not resort to the 
 common counts for work and labour, when he was bound by the special 
 contract to deliver the work. If the plaintiff had delivered the work, or 
 so much of it as he had completed at the time "The Juvenile Library " 
 was abandoned, the defendants might have turned it to account in some 
 other way. 
 
 TiNDAL, C. J. In this case a contract had been entered into for the 
 publication of a work on Costume and Ancient Armour in "The Juvenile 
 Library." The considerations by which an author is generally actuated in 
 undertaking to write a work are pecuniary profit and literary reputation. 
 Now, it is clear that the latter may be sacrificed, if an author, who has 
 engaged to write a volume of a popular nature, to be published in a work 
 intended for a juvenile class of readers, should be subject to have his 
 writings published as a separate and distinct work, and therefore liable to 
 be judged of by more severe rules than would be applied to a familiar 
 work intended merely for children. The fact was, that the defendants 
 not only suspended, but actually put an end to, "The Juvenile Library;" 
 they had broken their contract with the plaintiff; and an attempt was 
 made, but quite unsuccessfully, to shew that the plaintiff had afterwards 
 entered into a new contract to allow them to publLsh his book as a sejaarate 
 work. 
 I I agree that, when a special contract is in existence and open, the 
 I plaintiff cannot sue on a quantum meruit : part of the question here, there- 
 fore, was, whether the contract did exist or not. It distinctly appeared 
 that the work was finally abandoned; and the jury found that no new 
 contract had been entered into. Under these circumstances the plaintiff 
 ought not to lose the fruit of his labour; and there is no ground for the 
 application which has been made. 
 
 Oaselee. .J. concurred.
 
 SECT, n] WITHERS V. IIEYNOLDS. 749 
 
 BoSANQL-ET, J. Tlio [ilaintiH' is entitled to let.'iiu liis verdiet. The; 
 jury have found tliat the eontract was abandoned ; but it is said that the 
 plaintitt" ouglit to have tendered or delivered th(! work. It was part of 
 tlie contract, however, that tlie work shoukl l)e publislied in a particular 
 shape; and if it had been delivered after the abandonment of the original 
 design, it might have been published in a way not consistent witli the; 
 plaintifi's reputation, or not at all. 
 
 Al^DEKSON, J. concurred, and the learned Serjeant 
 
 Ton/c IKlf/lUKJ, 
 
 WITHERS V. REYNOLDS. 
 
 I.v THE King's Bench, November 14, 1831. 
 
 [rtcported in 2 JjariieiruU iC Adolphvs, 882.] 
 
 Assumpsit for not delivering straw to the plaintill' pursuant to agree- 
 ment. At the trial before Lord Tenterden, C. J. at the sittings in Middle- 
 sex after last Hilary term, the agreement proved was as follows: — 
 
 "John Reynolds undertakes and agrees to supplj' Joseph Withers with 
 wheat straw of good quality sufficient for his use as a stable-keeper, and 
 delivered on his premises as above" (i.e. at Long Acre, London) "till 
 the 24th of June, 1830, at the sum -of thirty-three shillings per load of 
 tiiirty-six trusses, and to be delivered at the rate of three loads in a fort- 
 night, in a dry state and without damage. And the said J. W. liereby 
 agrees to pay to the said J. R. or his order the sum of thirty-three shillings 
 per load for each load of straw so delivered on his premises from this day 
 till the 24th of June, 1830, according to the terms of this agreement. 
 (Signed) "Joseph Withers, John Reynolds." 
 
 The straw was regularly sent in from the 20th of October, 1829, wlien 
 this agreement was made, till the end of January, 1830. At that time, 
 the plaintiff being in arrear for several loads of straw, the defendant called 
 upon him for the amount, and he thereupon tendered to the defendant 
 III. lis., being the price of all the straw delivered except the last load, 
 saying that he should always keep one load in hand. The defendant 
 objected to this; but was at length obliged to take the sum offered: and 
 lie then told the plaintiff that he would send no more straw unless it was 
 paid for on delivery : and accordingly no more was sent. On the part- of 
 the defendant it was submitted that there must be a nonsuit, inasmuch as 
 the plaintiff, on his own shewing, had not performed his own part of the 
 contract, whicli was, in effect to pay for eacli load on delivery. LoiU)
 
 750 WITIIEUS ?'. IlEVXni,I)S. [chap. VII 
 
 Tenterden, C. J. was of this opinion; but directed a verdict for the 
 plaintiff, reserving the point. A rule nisi was afterwards obtained for 
 entering a nonsuit. 
 
 Camjybell and B. V. liichards now sliewed cause. Two things inde- 
 pendent of each other were stipulated by this contract to be done by the 
 respective parties : the defendant was to deliver straw ; the plaintiff to pay 
 the price. No time of payment was specified. There appears notliing which 
 could entitle the defendant to insist on receiving his money till the whole 
 quantity of straw was delivei-ed. Payment, then, was not a condition of the 
 defendant's performance of his contract. His promise was given in con- 
 sideration that the plaintiff promised to pay, not in consideration of per- 
 formance. If the plaintiff was bound to pay for each load on delivei'y, still it 
 does not follow that a refusal to pay for one load excused the defendant from 
 any future performance of his contract. Weaver v. Sessions'. And, accordihg 
 to that case, he ought at least to have shewn that he subsequently made 
 a tender of executing his part of the agreement, which the plaintiff reject- 
 ed. The defendant, therefore, upon his construction of the agreement, 
 may be entitled to bring a cross action, but has no defence to this. 
 
 Plaft, contra. The only question is upon the construction of this agree- 
 ment. It is true, no time of payment was specified, but in the absence of 
 any express stipulation, the money would be payable on demand as often 
 as it became due; and here the words, "to pay thirty-three shillings per 
 load for each load so delivered," intimate that the price of each load was 
 to be due as soon as it was delivered. (Here he was stopped by the Court.) 
 
 LoED Tenterden, C. J. I am of opinion that the plaintiff is not entitled 
 to recover. There is, I think, no doubt that by the terms of this agree- 
 ment the plaintiff was to pay for the loads of straw as they were delivered. 
 If that were not so, the defendant would have been liable to the incon- 
 venience of giving credit for an indefinite length of time, and, in case of 
 non-payment, bringing an action for a very large sum of money, which 
 does not appear to have been intended by the conti-act. Then the only 
 question is, whether upon the plaintiff's saying, "I will not pay for the 
 goods on delivery" (for that was the effect of his communication to the 
 defendant), it was incumbent on the defendant to go on supplying straw ; 
 and he clearly was not obliged to do so. 
 
 Parke, J. The substance of the agreement was, that the straw 
 sliould be paid for on delivery. The defendant clearly did not contemplate 
 credit. When, therefore, the plaintifl' said that he would not pay on 
 delivery, (as he did, in substance, when he insisted on keeping one load in 
 hand,) the defendant was not obliged to go on supplying him. 
 
 Taunton, J. The contract does not say merely that so much straw 
 shall Ijo supplied at thirty-three shillings a load, but it adds, that the 
 
 > C Taunt. 1.54.
 
 ^ECT. U] FHANKLIK V. MILI.E!!. 751 
 
 pre- 
 
 pliiintiff shall pay that sum "for each Ifjatl of straw delivered on his pi 
 mises," from tlie date of the agreement till the 24th of June, 1830. That 
 primS facie imports that oaeli load was to be paid for as delivered. 
 
 Patteson', J. If the plaintiff had merely failed to pay for any pai-ticu- 
 lar load, that, of itself, might not have been an excuse to the defendant 
 for delivering no more straw: but the plaintiff here expressly refuses to 
 pay for the loads as delivei'ed; the defendant, therefore, is not liable for 
 ceasing to perform his pai-t of the contract. 
 
 Iiule ahiolutp,. 
 
 FRANKLIN v. MILLER. 
 In the King's Bench, January 2G, ](S3G. 
 
 [Reported In 4 Adolplmx <f- EUis, 500.] 
 
 Assumpsit. The first count stated that defendant, being indclited to 
 di%ers persons, undertook, by a certain agreement, to pay plaintiff the 
 full amount of all accounts paid for defendant by him, with the expenses, 
 and further to pay over to plaintiff 40/. per quarter of his (defendant's) 
 .salary, until the said debts should be fully settled; and tliat, by the said 
 agreement, plaintiff agreed to advance a .sovereign per week, and the rent 
 of 51. 5«., also Mr jNIoxey 5/. 3s. 2d., and Mr Morrison 5L per quarter out 
 the said 40/., which would become due respectively on the first days of 
 January, April, July and October. And that, in consideration of the 
 premises, and of plaintiff's promise to perform the agreement, defendant 
 promised to perform &c. on his part. And although plaintiff on &c., and 
 on divers other days &c., paid for defendant to divers persons, to wit, etc. 
 (naming them), divers accounts, being debts due and owing from defendant 
 to tliose persons respectively, and amounting in the whole to a large etc., 
 to wit 281/., the full amount of which accounts defendant was liable to, 
 and ought to liave paid to plaintiff according to the agreement, whereof 
 itc. (notice to defendant): and although since the making of the agreement, 
 and before the connnencement of this suit, divers, to wit, five of the sums 
 of 40/. in the agreement mentioned, liave become due from defendant to 
 plaintiff according to the agreement, to wit, on October 1st, 1833, and the 
 first days of January, April, July, and October, 1834, and although the 
 debts mentioned in the agreement have not been fully settled, and although 
 defendant hath paid a part, to wit, 160/. of the amount of the said ac- 
 counts so paid as aforesaid, and of tlie said sums of 40/. so due as afore- 
 said, yet itc, breach, that defendant hath not paid the residue of the full 
 amount of tlio said accounts, or of tlie said sums of 10/. which became due
 
 752 FI!\NKr,IN' )'. MILLER. [CHAP. Vlf 
 
 as aforesaid, tliougli requested, to wit on etc., so to do; and there is now 
 due to plaintiff ifcc. The same count also charged a breach of contract by 
 defendant, in not paying expenses incurred by plaintiff in settling the 
 accounts paid as aforesaid. 
 
 Third plea, as to the first three sums of 40^., payment. 
 
 Fourth plea, as to the non-payment of two sums of 40^., alleged in the 
 declaration to have become due July 1st and October 1st, 1834: that long 
 before the same or either of them became due, to wit. May 1st, 1834, and 
 on divers other days and times afterwards, and before the said 1st of July, 
 1834, there were persons, to wit, &c. (mentioning three persons different 
 from those named in the declaration), the residue of the said persons, to 
 whom defendant, at the time of the making of the said agreement, was, 
 and then still continued, indebted in divers sums of money, wliereof plain- 
 tiff then had notice, and plaintiff could and might then have fully paid or 
 otherwise settled their said debts, had he used due and reasonable care and 
 diligence in that behalf; but plaintiff did not nor would fully pay or settle 
 the .same, and carelessly and negligently suffered and permitted the same 
 to be and remain unpaid and unsettled. And defendant further saith that, 
 although he did afterwards, to wit, April 1st, 1834, pay to plaintiff the 
 said sum of iOl. to be by defendant paid to plaintiff on that day, for the 
 purposes in the said agreement mentioned ; yet plaintilf did not, nor would, 
 thereout or otherwise, at any time afterwards, although often requested so 
 to do, advance to defendant a sovereign per week, but wholly neglected so 
 to do; and thereupon defendant, within a reasonable time then next follow- 
 ing, and before the said last mentioned sums of 40Z. became due and payable, 
 to wit. May 20th, 1834, rescinded and put an end to, and abandoned the 
 said agreement, and gave plaintiff notice thereof, and that defendant 
 sliould not require plaintiff to perform tlie same in any thing further on 
 his part and behalf to be performed and fulfilled. Verification. 
 
 Replication to the fourth plea, that, before and at the time when 
 defendant paid plaintiff the sum of 40^. in that plea alleged to have been 
 so paid, defendant was indebted to plaintiff in a large sum of money, to 
 wit, 50/. and more, for and in respect of the said money paid by plaintiff 
 for defendant as in the said first count is mentioned ; and that the said 
 last mentioned sum of 40/., at the time when the same was paid by defen- 
 dant to plaintifl" was of less amount than, and was insufficient to satisfy 
 or discharge, the said money in which defendant was indebted to plaintifl' 
 as last aforesaid, and for which money tlie said agreement in the said 
 first count mentioned was then a security to plaintiff. Verification. 
 
 Demurrer to the replication, assigning for causes, that, although the 
 defendant hath, in his fourtli plea, alleged that he paid plaintiff the 401. 
 for the purposes of the agreement, the plaintifl" hath not in his replica- 
 tion shewn any excuse for not applying it to those purposes, and hath 
 endeavoured to apply it to other purposes and debts which by law he 
 could not do; tliat the roplication does not specifically slicw how the 40/.
 
 SECT, ll] FnANKLIN V. MILLER. 753 
 
 was appropriated, nor what was the subject-matter of the debt due from 
 defendant to plaintiff"; that the replication is a departure; and that, al- 
 though defendant iu his fourth plea hath shewn anotlier breach by plaintiff 
 of the said agreement sufficient to enable defendant to rescind the same, 
 plaintiff hath not, by his replication, traversed or denied, or confessed and 
 avoided the said breach, and hath admitted it. 
 
 Joinder in demurrer. 
 
 R. V. Richards in support of the demurrer'. 
 
 W. Clarkson, contra. 
 
 Lord Denman, C. J. The defendant, by his plea, says, "true it is, I 
 did not pay the sums claimed, but there were some debts which you might 
 have paid and have not, and you have not paid me the sovereign per week ; 
 therefore I have rescinded the contract." And this is said when the plain- 
 tiff is considerably in advance. It is clear that the defendant had no right 
 to treat the contract as rescinded. That is illustrated by the judgment of 
 Patteson, J. in Withers v. Reynolds", where it is said, "If the plaintiff 
 had merely failed to pay for any particular load, that, of itself, might not 
 have been an excuse to the defendant for delivering no more straw." As 
 therefore, the defendant, here, has not shewn a valid excuse by his plea, 
 it is unnecessary to consider whether or not the replication be bad. 
 
 LiTTLEDALE, J. "With respect to the plea, the plaintiff may say, "as- 
 suming that there has been a default made as to my part of the contract, 
 it is only a partial breach, and the defendant's argument would go the 
 length of insisting that if I had in any one week omitted to pay the sove- 
 reign, he might put an end to the contract, and deprive me of all the 
 money I have paid in advance: for he states that he has rescinded the 
 agreement altogether." It is a clearly recognised principle that, if there 
 is only a partial failure of performance by one party to a contract, for 
 which there may be a compensation in damages, the contract is not put an 
 end to. In Boone v. Eyre^, which was an action of covenant on a deed 
 whereby the plaintiff conveyed to the defendant the equity of redemption 
 of a plantation iu the West Indies together with the stock of negroes upon 
 it, in consideration of 500^. and an annuity of 160^. for his life, and cove- 
 nanted that he had good title to the plantation and was lawfully possessed 
 of the negroes, and the defendant covenanted that, the plaintiff perform- 
 ing every thing in the deed contained on his part, he would pay tlie 
 annuity, and the breach alleged was non-payment, the defendant pleaded 
 that the plaintiff was not at the time of making the deed lawfully pos- 
 sessed of the negroes. On demurrer to the plea. Lord Mansfield said, 
 " The distinction is very clear. Where mutual covenants go to the whole 
 of the consideration on both sides, they are mutual conditions, the cue pre- 
 cedent to the other. But where they go only to a part, where a breach 
 
 ' The arguments are omitted. Ed. 
 ' •- 2 B. * Ad. 882. •' 1 H. Bl. 27.S, note (a). 
 
 F. ^^
 
 754 FREETH V. BURR. [CHAP. VII 
 
 may be paid for in damages, there the defendant has a remedy on his 
 covenant, and shall not plead it as a condition precedent. If this plea were 
 to be allowed, any one negro not being the property of the plaintiff would 
 bar the action." So here, it cannot be contended that, if in any one week 
 the sovereign had been unpaid, that default would put an end to a contract 
 made up of several stipulations, some of which have been executed. It is 
 immaterial to consider whether or not the replication be good. 
 
 Williams, J. concurred. 
 
 Coleridge, J. I think both the replication and the plea bad. The 
 plea is not good, unless one party to a contract like this may treat' it as 
 rescinded, if the other fails in the slighest degree to perform his part of it. 
 The rule is that, in rescinding as in making a contract, botli parties must 
 concur. In Withers v. Reynolds' each load of straw was to be paid for on 
 delivery. When the plaintiff said that he would not pay for the loads on 
 delivery, that was a total failure; and the plaintiff was no longer bound to 
 deliver. In such a case it may be taken that the party refusing has 
 abandoned the contract. The present case is different ; and the plaintiff is 
 entitled to judgment. 
 
 Judgment for the plaintiff. 
 
 FREETH AND ANOTHER v. BURR. 
 
 In the Common Pleas, January 14, 1874. 
 
 [Heported in Law Reports, 9 Common Pleas, 208.] 
 
 The declaration .stated that it was agreed by and between the plaintiffs 
 and tlie defendant that the defendant should sell and deliver to the 
 plaintiffs and the plaintiffs should buy and accept of and from the de- 
 fendant 2.50 tons of pig-iron, at 56s. per ton, to be delivered by the 
 defendant to the plaintifls ; that the defendant delivered to the plaintiffs 
 one half of the said 250 tons of pig-iron, and that all conditions were 
 fulfilled, &c., to entitle the plaintiffs to have the agreement fulfilled by the 
 defendant in respect of the matters the breach of which is hereinafter 
 assigned, and to maintain this action : Breach, that the defendant did not 
 nor would deliver to the plaintiffs the residue of the said 250 tons of pig- 
 iron according to the agreement ; whereby the plaintiffs had been deprived 
 of the profits which would have accrued to them from the delivery of the 
 same, and had been delayed and otherwise injured and damnified in their 
 business, in wliich the defendant well knew they intended to use the said 
 goods. Claim, 500/. 
 
 1 2 B. & Ad. 882.
 
 SECT. Il] FREETH V. BURR. 755 
 
 Pleas, 1. that the defendant did not .agree, as alleged; 2. a denial of 
 the alleged breach; 3. that, after tlie alleged promise, and liefore any 
 breach thereof by the defendant, the plaintifls exonerated and discliargi-d 
 the defendant from his promise and from the performance of the same ; 
 4. that, after the making of the alleged contract, and before any breach 
 thereof by him, the said contract was rescinded and abandoned by nmtual 
 assent. 
 
 Joinder of issue ; and further replication to the third plea, that the 
 plaintifls were suing, not for a breach of the agreement therein admitted, 
 and from the performance of which the defendant alleged that the plaintiffs 
 exonerated and discharged the defendant, but for the breacli of another 
 and subsequent agreement by which the defendant agreed to sell and de- 
 liver the said iron to the plaintiffs. 
 
 There was a similar replication to the fourth plea. 
 
 Eejoinders to the second and third replications, — that no such agree- 
 ment as the supposed other and subsequent agreements in those replica- 
 tions respectively mentioned were made, — that the defendant denied the 
 alleged breaches of the said other and subsequent agreements and every of 
 them, and said that he was not guilty tliereof. Issue. 
 
 The cause was tried before Brett, J., at the sittings in London after 
 last Hilary Term. The plaintifls and the defendant were iron-merchants 
 and manufacturers. In November, 1871, the plaintiffs agreed to buy of the 
 defendant 250 tons of pig-iron, and on the 28th of that month bought and 
 sold notes were exchanged. The bought-note, signed by the plaintifls, was 
 as follows : — 
 
 "London, 2Stli November, 1871. 
 
 " Bought of Messrs. D. M. Burr & Co. two hundred and fifty tons 
 of pig-iron, at fifty-six shillings per ton alongside our wharf, Millwall. 
 Half to he delivered in two weeks, remainder in four weeks. Payment, 
 net cash 14 days after delivery of each parcel." 
 
 The market was rising, and early in February the plaintiffs wrote to 
 the defendant remonstrating witli him for not having delivered any of the 
 iron. About the 15th of that month 10 J tons were sent alongside the 
 plaintiffs' wharf ; and on the 20th the plaintiffs wrote to the defendant, as 
 follows : — 
 
 "We are much surprised you .should liave .sent sucli a paltry lot as 10 
 tons on account of contract for 250 tons wliich should have been delivered 
 last December. We must request you will give us a definite time for 
 delivery of at least 50 tons, which must be delivered at once, or we shall 
 have again to buy against you." 
 
 On the 17th of May, 1872, the defendant wrote to the plaintifls, as 
 follows : — 
 
 "We are informed that the ligliter which we sent with .30 tons Kent- 
 ledge pig-iron to your wharf on the 10th instant is still lying there 
 
 48—2
 
 756 FREETH ?'. BURR. [CHAP. VII 
 
 unloaded, and tliat tliis has arisen through an undue preference being 
 allowed by you to other barges in discharging, or from some other cause for 
 whicli you are to blame. We have, therefore, to intimate that we shall 
 hold you liable for demurrage from and after 13th instant." 
 
 On the 18th the plaintiffs wrote to the defendant, — "In answer to 
 yours of the 17th instant, your barge has been discharged some days. 
 Do you intend to deliver the remainder, or shall we buy against you 1" 
 
 To this the defendant replied on the 21st, — "It is our intention to 
 deliver remainder of pig-iron, and do not wish you to buy against us. We 
 inclose invoice of last lot." 
 
 Ou the 29th of May, 126 tons in all having by that time been delivered, 
 the defendant wrote to the plaintiffs, — " Would you kindly forward us . 
 cheque in payment of the ballast iron we have delivered to you, and we 
 shall proceed at once to send on the remainder." 
 
 The plaintiffs, under an erroneous impression that they were entitled 
 to set off against the defendant's claim any loss wliich they might incur in 
 case the defendant should fail to deliver the remainder of the iron con- 
 tracted for, refused to pay for the 125 or 126 tons which had been de- 
 livered ; and their attorney, in reply to a letter from the defendant's 
 attorney demanding payment, put forward a claim for 2501., being 2/. per 
 ton on the 1 25 tons undelivered. 
 
 On the 12th of June, the defendant's attorneys wrote to the plaintiffs' 
 attorney. — "We hardly think it necessary to refer to your clients' claim 
 for 250?., as it is purely hypothetical and could not possiblj' arise, as your 
 clients by their own default have obliged our client to refuse to make 
 any further delivery of iron. We must request your clients' immediate 
 attention to the settlement of amount (352?. 15s. lOrf.) mentioned in our 
 letter of the 5th instant." 
 
 The plaintiffs paid ultimately (but not until after an action had been 
 brought for it) for the first 125 tons of iron ; and tliis action -was brought 
 against the defendant for the breach of his contract in refusing to deliver 
 the second 125 tons. 
 
 On the part of the defendant, it was contended that the plaintiffs' 
 refusal to pay for the first parcel of the iron amounted to an abandonment 
 of the contract by them, and absolved the defendant from his obligation 
 further to perform it on liis part. Hoare v. Eennie^ was relied on. 
 
 The learned judge ruled that the mere refusal by the plaintiffs to pay 
 for the first 125 tons did not exonerate the defendant from his obligation 
 under the contract to deliver the second 125 tons, and consequently that 
 the plaintiffs were entitled to recover such damages as they had sustained 
 from the non-delivery : and he directed a verdict to be entered for the 
 plaintiffs for 148?. 16s.,— reserving leave to the defendant to move to enter 
 a nonsuit, if the Court should be of opinion that the refusal by the plaintiffs 
 to pay for the iron delivered amounted to an abandonment of the contract. 
 ' 5H. ctN. 1!); L'9L. .1. (Ex.) 19.
 
 SECT. Il] FREETU V. BURR. To? 
 
 Garth, Q.O., in E;ister Term last, obtained a rule nisi accordingly. 
 
 WatHn Williams, Q.C., and E. (.'larlce, who appeared to sjiew cause, 
 were stopped by the Court. 
 
 Garth, Q.C., and Pliilhrick, in support of the rule. The iron was not 
 delivered according to the strict terms of tlie contract : but tlie corre- 
 spondence shews that the time for delivery had been extended by mutual 
 consent. The whole of the first parcel having been delivered, the defendant 
 was entitled to payment for that parcel in fourteen days. Payment was 
 demanded and refused. The defendant had then a right, accordinsr to the 
 principle laid down in Iloare v. Hennie', to treat that refusal as a breach, 
 and to rescind the contract. In that case the plaintiffs had undertaken to 
 deliver to the defendants 667 tons of iron, to be shipped from Sweden in 
 the months of June, July, August and September, and in about equal 
 portions each month. In June the plaintiffs delivered twenty-one tons 
 only ; whereupon the defendants gave them notice that they would receive 
 no more ; and the Court of Exchequer held that they were justified in 
 considering the contract as at an end. Pollock, C. B., in delivei'ing 
 judgment, said : "At the outset, the plaintiffs failed to tender the quantity 
 according to the contract : they tendered a much less quantity. The de- 
 fendants had a riglit to say that this was no performance of the contract, 
 and they were no more bound to accept the short quantity than if a single 
 delivery had been contracted for." So, here, the non-performance by the 
 plaintifl's of the stipulation as to payment for the first parcel entitled 
 the defendant to assume that they repudiated the contract. In Withers v. 
 liei/Holds', the refusal by the buyer to perform his part of the contract by 
 paying for each load of straw as delivered, was held to entitle the seller to 
 rescind the contract. 
 
 [Deniian, J. There the plaintiff did acts and said things which 
 amounted to a declaration on his part that he did not mean to perform the 
 contract.] 
 
 Hoare v. lieiinie' was distinctly recognised in llradforJ v. Williams^, 
 though somewhat reflected upon in Simpson v. Vrippin*. 
 
 [Den.man, J., referred to Jonasshon v. Young^.^ 
 
 Lord Colekidoe, C. J. The (juestion in this case arises upon a con- 
 tract for the sale of iron entered into between the plaintiffs and the de- 
 fendant on the 28th of November, 1871, in the following terms : — "Bought 
 of Messrs. D. M. Burr & Co. 250 tons of pig-iron, at .56s. per ton along- 
 side our wharf, Millwall. Half to be delivered in two weeks, remainder in 
 four weeks. Payment, net cash fourteen days after delivery of each 
 parcel." The material facts were these : — There was no delivery in the 
 terms of the contract of either parcel of tlie iron. In point of fact, the 
 delivery of the first 125 tons was by mutual arrangement delayed, and the 
 last delivery of that parcel did not take place until the 12th of Slay, 
 
 1 5 H. AN. 19; 29 L.J. (Ex.) 19. = 2 B. & Ad. 883. 3 Law Ik-p. 7 Ex.259. 
 * Law Kep. 8 Q. B. 11. =■ 4 B. & S. 29G; 32 L. J. (Q. B.) 385.
 
 758 FREETH V. BURR. [CHAP. VII 
 
 1872. There was .a correspondence between the parties, pressure by the 
 purchasers for delivery, and excuses by the vendor for the non-delivery. 
 That the former were anxious for the completion of tlie contract appears 
 to be clear, as well from the tenor of the correspondence as from the fact 
 that the market was rising. A few days after the full delivery of the first 
 parcel, viz. on the 29th of May, 1872, the defendant demanded payment 
 for the 125 tons, wliich the plaintiffs refused, claiming to set off damages 
 for the defendant's breacli of contract. Tlie plaintifls afterwards demanded 
 delivery of the remaining 125 tons; and upon the defendant's refusal to 
 comply with that demand this action was brought. The question is 
 whetlier the fact of the plaintifls' refusal to pay for the 1 25 tons delivered 
 was such a refusal on the part of the purchasers to comply with their part 
 of the contract as to set tlie seller free and to justify his refusal to continue 
 to perform it. This certainly appears, viz. that there was an extension 
 by mutual consent of the time for the delivery of the iron from December, 
 1871, to May, 1872, with constant pressure on the one side and excuses 
 and resistance on the other. I mention that because it is important to 
 express my view that, in cases of this sort, where the question is whether 
 the one party is set free by tlie action of the other, the real matter for 
 consideration is whether the acts or conduct of the one do or do not 
 amount to an intimation of an intention to abandon and altogether to 
 refuse performance of the contract. I say this in order to explain the 
 ground upon which I think the decisions in these cases must rest. There 
 has been some conflict amongst them. But I think it may be taken that 
 the fair result of them is as I have stated, viz. that the true question is 
 whether the acts and conduct of the party evince an intention no longer 
 to be bound by the contract. Now, non-payment on the one hand, or non- 
 delivery on the other, may amount to such an act, or may be evidence for 
 a jury of an intention wholly to abandon the contract and set the other 
 party free. That is the true principle on which Hoare v. Eennie ' was decided, 
 whether rightly or not upon the facts, I will not presume to say. Where 
 by the non-delivery of part of the thing contracted for the whole object of 
 the contract is frustrated, the party making default renounces on his part 
 all the obligations of the contract. That is the ground upon which it is 
 said in Jonasshon v. Young' that that case may be supported. In Withers 
 V. Reynolds^ there was an express refusal by the plaintiff" to perform 
 the contract : and Patteson, J., says : " If the plaintiff' had merely failed 
 to pay for any particular load, that of itself miglit not have been an excuse 
 to the defendant for delivering no more straw : but the plaintiff here 
 expressly refuses to pay for the loads as delivered ; the defendant, there- 
 fore, is not liable for ceasing to perform his part of the contract." "Wight- 
 man, J., certainly, and Crompton, J., by inference, in Jonasshon y. Youtig*, 
 both uphold that case upon the principle on which I rely. The principle 
 
 1 5 H. & N. 19; 29 L. J. (Ex.) 19. = 4 B. & S. 296; 32 L.J. (Q. B.) 385. 
 
 3 2 B. & Ad. 8.S2. ■" i B. <S- S. at p. 2SU.
 
 SECT. Il] FREETH V. BURR. 759 
 
 to be applied in these cases is, whetlier the non-delivery or the non-payment 
 amounts to an abandonment of the contract or a refusal to perform it on 
 the part of the person so making default. Tliat being so, and my Brother 
 Brett having ruled that the mere non-payment for the first portion of the 
 iron contracted for, unattended liy any otlier act on the part of the pur- 
 cliasers, did not put an end to the contract so as to disentitle the pur- 
 chasers to maintain an action for the non-delivery of the second portion, 
 but only gave the seller a remedy by cross-action (of which he has availed 
 himself), I am of opinion that his ruling was correct, and that the rule 
 should be discharged. 
 
 Keating, J. I entirely agree in the judgment pronounced by my 
 Lord, and in the principle upon which lie puts it. It is not a mere refusal 
 or omission of one of the contracting parties to do something whicli he 
 ought to do, that will justify the other in repudiating the contract ; but 
 there must be an absolute refusal to perform his part of the contract. 
 Non-payment is an element. But, looking at all tlie circumstances of this 
 case, — a rising market ; a failure on the part of the defendant to deliver 
 the iron according to the terms of the contract ; a series of deliveries in 
 small quantities long after the times for delivery provided for by the 
 contract ; and a refusal on the part of tlie plaintiffs to pay for tjie iron 
 delivered, not only accompanied by remonstrances, but with a requisition 
 to the seller to fix a day for the delivery of a certain quantity ; — I do not 
 think they shew an intention on the part of the plaintiffs to abandon the 
 contract. As upon the facts there appears to have been not only no 
 absolute refusal to perform the contract by the plaintiff's, and, what is 
 important, no evidence of inability on their part to perform it, I think the 
 defendant had no right to treat the contract as rescinded and to refuse 
 to deliver the remainder of the iron. 
 
 Denman, J. I am of the same opinion. The learned judge ruled that 
 the mere refusal by the plaintiffs to pay for the portion of the iron delivered 
 did not warrant the defendant in considering the contract as at end ; and 
 he gave the defendant leave to move to enter a verdict or a nonsuit if the 
 Court should think that ruling wrong. I am of opinion, upon the authority 
 of Withers v. Reynolds \ that the ruling was quite riglit. That case did not 
 decide expressly that a mere failure of a single payment might not be evi- 
 dence of a refusal to perform the contract. But, in the words of Patteson, J., 
 the conduct of the plaintiff", coupled with the non-payment, amounted to 
 an express refusal to perform the contract on his part. There was nothing 
 of the sort here. After the way in wliich that case has been treated in 
 subsequent authorities, I think we are bound to hold it to be a correct 
 statement of the law, and to act upon it. Notwithstanding the plaintifl"s 
 refusal to pay, the defendant was bound to go on and deliver the rest of 
 the iron^ Rule dischargi'd. 
 
 1 2 B. cfc Ad. 882. 
 - See the case of The Mersey Steel and Iron Co [LimUcit) v. Nai/hr, 9 App. Cas. 434. En.
 
 700 FKOST V. KNIGHT. [CHAP. VII 
 
 FROST V. KNIGHT, 
 l.v THE Exchequer Chamber, February 8, 1872. 
 
 [Reported in Law liejmrts, 7 Exchequer, 111.] 
 
 Error on a judgment of the Court of Exchequer (Kelly, C. B., and 
 Channell, B. ; Martin, B., dissenting), arresting the judgment after a ver- 
 dict for the plaintiff The facts and pleadings in the case are stated in 
 the judgment of t!ie Lord Cliief Justice, and more fully in the report of 
 the case below'. 
 
 June 20, 21, 1871. The case was argued by 
 
 mil, Q.C. (BoJd with him), for the plaintiff. 
 
 Foioell, Q.C. {Slreeten with him), for the defendant. 
 
 Cur. adv. indt^. 
 
 Feb. 8, 1872. The following judgments were delivered: — 
 
 CocKBURN, C. J^. This case comes before us on error, brouglit on a 
 judgment of tlie Court of Exchequer arresting the judgment in the action 
 on a verdict given for the plaintiff. 
 
 Tlie action was for breach of promise of marriage. The promise, as 
 proved, was to marry the plaintiff on the death of the defendant's fatlier. 
 The father still living, the defendant announced his intention of not fulfilling 
 his promise on his father's death, and broke off the engagement, whereupon 
 tlie plaintiff, without waiting for the father's death, at once brouglit the 
 present action. The plaintiff having obtained a verdict, a rule nisi was 
 applied for to arrest the judgment, on the ground that a breach of the 
 contract could only arise on the father's death, till which event, no claim 
 for performance could be made, and, consequently, till its occurrence, no 
 action for breach of the contract be maintained. A rule nisi having been 
 granted, a majority of the Court of Exchequer concurred in making it 
 absolute, Martin, B., dissenting; and the question for us is, whether the 
 judgment of the majority was right. 
 
 Tlie cases of Lovelock v. Franklyn'^ and Short v. Stone'', which latter 
 case was an action for breach of promise of marriage, had established that 
 where a party bound to the performance of a contract at a future time 
 puts it out of his own power to fulfil it, an action will at once lie. The 
 case of Hochster v. De la Toiir'^, upheld in this court in the Danube and 
 
 1 Law Eep. 5 Ex. 322. 
 
 " The case was heard before Cockburn, C. J., and Byles, Montague Smith, Keating, 
 and Lush, JJ.; but before tbe judgment was delivered Montague Smith, J., had ceased 
 to be a member of the Court. 
 
 ■' In this judgment Keating and Lush, JJ., concurred. 
 
 ■< 8 Q. D. 371. ^ 8 Q. B. 3i8. « 2 E. & B. 678 ; 22 L. .L (Q. B.) 15o.
 
 SECT. Il] FROST V. KNIGHT. 7G1 
 
 H lack Sea Co. v. Xenos' went further, and established tliat notit'e of an 
 intended breacli of a eontract to be performed in futuro had a like eti'ect. 
 
 The law with reference to a contract to be performed at a future time, 
 where the party bound to performance announces prior to the time his 
 intention not to perform it, as e.stablished by tlie cases of Ilocfisler v. De Ik, 
 Tour' and The Danube and Black Sea Co. v. Xenos^ on the one hand, and 
 Avery v. Bowden^, Revl v. Uoskhis*, and Barwick v. Buba' on the other, 
 may be thus stated. The promisee, if he pleases, may treat the notice of 
 intention as inoperative, and await tlie time when the contract is to be 
 executed, and then hold the other party responsible for all the conse- 
 quences of non-performance : but in that case he keeps the contract alive for 
 the benefit of the otlier party as well as his own; he remains subject to all 
 his own obligations and liabilities under it, and enables the other party not 
 only to complete the contract, if so advised, notwithstanding his previous 
 repudiation of it, but also to take advantage of any supervening circum- 
 stance wliich would justify him in declining to complete it. 
 
 On the other hand, the promisee may, if he thinks proper, treat the 
 repudiation of the other party as a wrongful putting an end to the con- 
 tract, and may at once bring his action as on a breach of it; and in such 
 action he will be entitled to sucli damages as would have arisen from the 
 non-performance of the conti'act at the appointed time, subject, however, 
 to abatement in respect of any circumstances which may have aflbrded him 
 the means of mitigating his loss. 
 
 Considering this to be now settled law, notwithstanding any thing 
 that may have been held or said in the cases of I'lnlpotts v. Bvans" and 
 Ripley V. MtClure' , we should have had no difficulty in applying the prin- 
 ciple of the decision in Hochster v. De la Tour' to the present case, were 
 it not for the difference which undoubtedly exists between that case and 
 the present, viz., that, whereas there the pei'formance of the contract was 
 to take place at a fixed time, here no time is fixed, but tlie performance is 
 made to depend on a contingency, namely, the death of the defendant's 
 father during the lifetime of the contracting parties. It is true that in 
 every case of a personal obligation to be fulfilled at a future time, there is 
 involved the possible contingency of the death of the party binding him- 
 self, before the time of performance arrives; but here we have a further 
 contingency depending on tlie life of a third person, during which neither 
 party can claim performance of the promise. This being so, we thought 
 it right to take time to consider whether an action would lie before the 
 death of the defendant's father had placed the plaintiff in a position to 
 claim the fulfilment of the defendant's promise. 
 
 After full consideration we are of opinion that, notwithstanding the 
 distinguishing circumstance to which I have referred, this case falls with- 
 
 1 13 C. B. (N.s.) 825; 31 L. J. (C. P.) 284. = 2 E.cfe B. 678; 22 L.J. (Q. B.) 455. 
 3 5 E. & B. 711; 26 L. J. (Q. B.) 3. ■> E. <fc B. 953; 26 L. J. (Q. B.) 5. 
 
 5 2 C. B. (x.s.) 563; 2G L. .J. (C. V.) 2y0. " 5 M. & W. lY-l. " i Ex. at p. 310.
 
 7G2 FROST V. KNIGHT. [C'HAP. VII 
 
 in the principle of Ilochster v. Be la Tonr\ and that, consequently, the 
 present action is well brought. 
 
 The considerations on which the decision in Ilochster v. Da la Tour^ is 
 founded are that the announcement of the contracting party of his inten- 
 tion not to fulfil the contract amounts to a breach, and that it is for the 
 common benefit of both parties that the contract shall be taken to be 
 broken as to all its incidents, including non-performance at the appointed 
 time; as by an action being brought at once, and the damages consequent 
 on non-perfoi-mance being assessed at the earliest moment, many of the 
 injurious effects of such non-performance may possibly be averted or miti- 
 gated. 
 
 It is true, as is pointed out by the Lord Chief Baron, in his judgment in 
 this case, that there can be no actual breach of a contract by reason of 
 non-performance so long as the time for performance has not yet arrived. 
 But, on the other hand, there is — and the decision in Ilochster v. Be la 
 Tour' -proceeds on that assumption — a breach of the contract when the 
 promisor repudiates it and declares he will no longer be bound by it. The 
 promisee has an inchoate right to the performance of the bargain, whicli 
 becomes complete when the time for performance has arrived. In the 
 mean time he has a right to have the contract kept open as a subsisting 
 and effective contract. Its unimpaired and unimpeached efficacy may be 
 essential to his interests. His rights acquired under it may be dealt with 
 by him in various ways for his benefit and advantage. Of all such advant- 
 age the repudiation of the contract by tiie other party, and the announce- 
 ment that it never will be fulfilled, must of course deprive him. It is 
 therefore quite right to hold that such an announcement amounts to a vio- 
 lation of the contract in omnibus, and that upon it the promisee, if so 
 minded, may at once treat it as a breach of the entire contract, and bring 
 his action accordingly. 
 
 The contract having being thus broken by the promisor, and treated as 
 broken by the promisee, performance at the appointed time becomes ex- 
 cluded, and the breach by reason of the future non-performance becomes 
 virtually involved in the action as one of the consequences of the repudia- 
 tion of the contract; and the eventual non-performance may therefore, by 
 anticipation, be treated as a cause of action, and damages be assessed and 
 recovered in respect of it, though the time for performance may yet be 
 remote. 
 
 It is obvious that such a course must lead to the convenience of both 
 parties; and though we should be unwilling to found our opinion on 
 grounds of convenience alone, yet the latter tend strongly to support the 
 view that such an action ought to be admitted and upheld. By acting on 
 such a notice of the intention of the promisor, and taking timely measures, 
 the promisee may in many cases avert, or at all events materially lessen, 
 the injurious effects which would otherwise flow from the non-fulfilment of 
 ' 2 E. & B. 678; 22 L. J. (Q. B.) 455.
 
 SECT. Il] FROST V. KNIGHT. 7G3 
 
 the contract; <and in assessing the damages for breach of performance, a jury- 
 will of course take into account whatever the plaintiff has done, or has 
 Iiad the means of doing, and, as a prudent man, ought in reason to have 
 done, whereby his loss has been, or would have been, diniinislied. 
 
 It appears to us that the foregoing considerations apply to the case of a 
 contract the performance of which is made to depend on a contingency, as 
 mucli as to one in which the performance is to take place at a future time; 
 and we are, therefore, of opinion that the principle of the decision of 
 Hochster v. De la Tour' is equally applicable to such a case as the present. 
 
 It is next to be observed, that the law as settled by Hochster v. De la 
 Tour' &nA Danube and Black Sea Company v. AVjos^ is obviously quite 
 as applicable to a contract in which personal status or personal rights 
 are involved, as to one relating to commercial or pecuniary interests. In- 
 deed, the contract of marriage appears to afford a striking illustration of 
 the expediency of holding that an action may be maintained on the repu- 
 diation of a contract to be performed in futuro. On such a contract being 
 entered into, not only does a right to its completion arise with reference 
 to domestic relations and possibly pecuniary advantages, as also to the 
 social status accruing on marriage, but a new status, that of betrothment, 
 at once arises between the parties. This relation, it is true, has not, by 
 the law of England, the same important consequences which attached to 
 it by the canon law and the law of many other countries. Nevertheless, 
 it carries with it consequences of the utmost importance to the parties. 
 Each becomes bound to the other; neither can, consistently with such a 
 relation, enter into a similar engagement with another person; each has 
 an implied right to have this relation continued till the contract is finally 
 accomplished by marriage. To the woman, more especially, it is all-im- 
 portant that the relation shall not be put an end to. Independently of the 
 mental pain occasioned by the abrupt termination of such an engagement, 
 the fact of its existence, if followed by such a termination, must neces- 
 sarily operate to her serious disadvantage. During its continuance others 
 will naturally be deterred from approaching her with matrimonial inten- 
 tions; nor could she admit of such approaches, if made; while the break- 
 ing off of the engagement is too apt to cast a slur upon one who has been 
 thus treated. We see, therefore, every reason for applying the principle 
 of Hochster v. De la Tour' to such a case, and for holding the contract, if 
 repudiated, to be broken, not only in its present, but also in its ultimate 
 obligations and consequences. To hold that the aggrieved party must wait 
 till the time fixed for marrying shall have arrived, or the event on whicii 
 it is to depend shall have happened, would have the effect of aggravating 
 the injury, by preventing the party from forming any other union, and by 
 reason of advancing age rendering the probability of such a union con- 
 stantly less. It has been suggested, indeed, tiiat the desire of marrying 
 and the happiness to be expected from it diminish with advancing years, 
 
 1 2 E. & B. G78 ; 22 L. J. (Q. B.) 4.55. -' 13 C. B. (n.s.) 82.5; 31 L. J. (C. P.) 28i.
 
 764! FROST C. KNIGHT. [cHAP. VII 
 
 and, therefore, that when by the terms of the contract marriage is only to 
 take pkice at a remote time, tlie value of the marriage and the damages to 
 be recovered for a breach of the promise would be less if the refusal 
 were made when tlie time for marrying was accomplished; and that, con- 
 sequently, an action ought not to be allowed till the time when the fulfil- 
 ment of tlie contract could have been claimed. We cannot concur in this 
 view. We think that, in estimating the amount of injury done and of the 
 compensation to be made for it, if tlie contract were broken when the 
 time for marrying had arrived, the wasted years and the impossibility of 
 forming any other engagement during the intermediate time sliould be 
 taken into account, and not merely tlie age of the parties and the then 
 existing value of the marriage. It is, therefore, manifest that it is better 
 for both parties — for the party intending to break the contract, as well as 
 for the party wronged by the breach of it — that an express repudiation of 
 the contract should be treated as a violation of it in all its incidents, and 
 should give the right to the party wronged to bring an action at once, and 
 have the damages assessed at the earliest moment. No one can doubt 
 that, morally speaking, a party who determines to break off a matrimonial 
 engagement acts far more commendably if he at once gives notice of his 
 intention, than if he keeps that intention secret till the time for fulfilling 
 the promise has come. The reason is, that the giving such notice at 
 the earliest moment tends to mitigate, while the delay in giving it neces- 
 sarily aggravates, the injury to tlie party wronged. 
 
 It has been urged that there must be great difficulty in thus assessing 
 damages prospectively. But this must always be more or less the case 
 whenever the principle of Hochster v. De la Tour' comes to be applied. 
 It would equally exist where one of the parties, by marrying another 
 person, gave rise, as in the case of Short v. Stone^, to an immediate right 
 of action. It cannot be said that the difficulty is by any means insuper- 
 able, and the advantages resulting from the application of the principle of 
 Hochster v. De la Tour' are quite sufficient to outweigh any. inconvenience 
 arising from the difficulty of assessing the damages. 
 
 We are struck by the fact that the Lord Chief Baron, while holding 
 that the present action would not lie, expressed an opinion tliat the wrong 
 done by the repudiation of a contract of marriage might be made tlie 
 foundation of an action on the case, in which the facts should be set forth. 
 But as the rights and obligations of the parties arise here entirely out of 
 the contract, we have a difficulty in seeing how such an action could be 
 maintained. But be that as it may, as in such an action as is thus sug- 
 gested the damages would have to be ascertained with reference to the 
 same facts and the same considerations as in an action brought on the 
 contract, it seems to us by far the simpler course, the case being, as it 
 seems to us for the reasons we have given, clearly within the decision in 
 Hochster v. De la Tour\ to hold that the present action for breach of tlie 
 ' 2E. &B. 678; 22L. J. (Q.B.)455. = 8 Q. B. 358.
 
 SECT. Il] FROST ('. KXICllT. 765 
 
 contract may be maintained, and that in it the phiintifl' is entitled to 
 recover damages in respect of the non-fullihnent of the promise as thoui'li 
 the death of the defendant's fatlier — tlie event on whicli tlie fullilment was 
 to depend — had actually occurred. 
 
 We are therefore of opinion tliat the judgment of the Court of Ex- 
 chequer must be reversed. 
 
 Byles, J. I think the plaintift" below entitled to recover, lioth on 
 principle and on authority, but as my judgment was prepared liefore I had 
 the advantage of seeing that of the Lord Chief Justice, and as this is a 
 case of great importance, I think I ought to deliver it. 
 
 An express pre-contract of marriage, as already suggested by the Lord 
 Chief Justice, places the man and woman in the condition or status of 
 betrothment. In this state there are certain nmtual duties. The woman, 
 for example, may not, without a breach, marry another man, althougli it 
 is possible that he may die before the future day appointed for the first 
 intended maniage, whether already fixed, or whether contingent on a 
 future event. So I conceive the man cannot, during tiie stipulated period 
 of betrothment, without a breach of contract, marry another woman, 
 though she may die in the mean time. So, for one of the parties to break 
 off the mutual engagement by an express refusal to perform it, though 
 before the day, seems to me to be equally a breach of the contract, for it 
 puts an end to the condition of betrothment which, according to the con- 
 tract, was to continue. In each of these three cases there is a repudiation 
 of the duties springing from the new relation involved in tlie contract. 
 
 But, independently of the peculiarities attending a pre-contract of 
 marriage, the decision in Uochste.r v. De la Tour^ shews that in the analo- 
 gous case of a pre-contract for future service, the refusal of one of the 
 parties to perform the contract, though before the time appointed for its 
 fulfilment, is a breach. And the decision in that case goes further than is 
 necessary for our decision in this case. For there no status had been 
 established like that involved in a pre-contract of marriage. 
 
 But the Court of Common Pleas, in the case of Wilkinson v. Verity^, 
 and the Court of Error, in Danube and Black Sea Compani/ v. Xenos^, 
 affirming the judgment of the Court below, have laid it down that an 
 absolute unconditional renunciation of a contract before the time of per- 
 formance amounts to a breach, though only at the election of the promisee. 
 
 Judgment reversed. 
 
 1 2 E. & B. 678; 22 L. J. (Q. B.) 455. ■ Law Eep. C C. P. 20G. 
 
 ■> 13 C. B. (N.s.) 825; 31 L. J. (C. P.) 28-1.
 
 766 PORDAGE V. COLE. [CHAP. VII 
 
 WARE v. CHAPPEL. 
 
 In the Uppee Bench, Michaelmas Term, 1G49. 
 [Reported in Style, 186.] 
 
 Ware hrouglit an action of debt for 500?. against Ch.ippel, upon an 
 indenture of covenants between them, viz. that Ware should raise 500 
 soldiers, and bring them to such a port, and that Chappel should find 
 shipping and victuals for them to transport them to Galicia, and for not 
 providing the shipping and victuals at the time appointed, was the action 
 brought. The defendant pleaded that the plaintiff had not raised the 
 soldiers at that time ; and to this plea the plaintift' demurs. 
 
 Windham, of counsel with the plaintiff, held, that the defendant ought 
 to have provided the shipping and victuals against the time, though the 
 soldiers were not raised ; for tlie not raising of the soldiers can be only 
 urged by way of mitigation of damages, and not pleaded in discharge of 
 the breach assigned. 
 
 Yard, of counsel with tlie defendant, held the plea was good in 
 bar of the action, for the covenants of each part have relation one 
 to the other, and there is a condition precedent made by the words, 
 to find shipping for the soldiers ; so that the defendant was not to find 
 shipping, except the plaintiff raised the soldiers ; neither is there any 
 notice given us how many soldier-s he had raised. 
 
 RoLLE, C. J., lield tliat there was no condition precedent ; but that 
 they are distinct ajid mutual covenants, and that there may be several 
 actions brought for them : and it is not necessary to give notice of the 
 number of the men raised, for the numbei' is known to be 500 ; and the 
 time for the shipping to be ready is also known by the covenants ; and 
 you have your remedy against him if he raise not the men, as he hath 
 against you for not providing the shipping. 
 
 Jermyn and Nicholas, JJ., held against Eolle for there is a pre- 
 cedent condition. 
 
 Aske, J., was of RoLLE, the Chief Justice's opinion. 
 
 Nicholas changed his opinion, and so judgment was given for the 
 plaintiff, except better matter were shewn. 
 
 PORDAGE V. COLE. 
 In THE King's Bench, Michaelmas Term, 16G9. 
 
 [Reported in 1 Williams' Saunders, 319.] 
 
 Debt upon a speciality for 774?. 15s. The plaintiff declares that the 
 
 defendant, by his certain writing of agreement made at, <fec. by the plaintiff 
 
 by the name, &c. and the defendant by the name, &c. and brings the deed 
 
 into court, &c., it was agreed between the plaintiff and defendant in
 
 SECT, ll] rnKDAGK V. COI,K. 767 
 
 manner and form following, (viz.) that tlio defendant should give to tlie 
 plaintift' the sum of 775/. for all his lands, with a house called Ashmole- 
 house thereunto belonging, with the brewing vessels remaining in the said 
 house, and with the malt-mill and wheelliarrow ; and that in pursuance of 
 the said agreement, the defendant had given to the plaintilF 5s. as an 
 earnest; and it was by the said writing further agreed between the 
 plaintiti' and defendant, that the defendant should pay to the plaintiff the 
 residue of the said sum of 775/. a week after the feast of St. John the 
 Baptist then next following (all other moveables, with the corn upon the 
 ground, except). And although the defendant has paid five shillings, 
 parcel, Ac. yet the said defendant, although often requested, has not paid 
 the residue to the damage, itc. 
 
 The defendant prays oyer of the specialty, which is entered in lia-o 
 verba, to wit: "11 May, 1G68. It is agreed between Doctor John 
 Pordage and Bassett Cole, esquire, that the said Bassett Cole shall gi^■o 
 unto the said doctor 775/. for all his lands, with Ashmole-house, thereunto 
 belonging, with the brewing-vessels as they are now remaining in the said 
 house, and with the malt>-mill and wheelbarrow. In witness whereof we 
 do put our hands and seals : mutually given as earnest in performance of 
 this 5s. ; the money to be paid before Midsunnner, 1G68 ; all other move- 
 ables, with the corn upon the ground, excepted." And upon oyer thereof 
 the defendant demurs. 
 
 And Withins, of counsel with the defendant, took sevei'al exceptions 
 to the declaration : 
 
 1. That the demand by the declaration is of 774/. 15a ; whereas the 
 whole sum is of 775/. ; and the 5s. paid for earnest shall not be taken as 
 part of the sum of 775/. Sed non allocatur; for per curiam it shall be 
 intended as part of the sum. 
 
 2. That the exception of the residue of the moveables is not well 
 recited : for the word (except) in the declaration is not good for want of 
 sense. Sed non allocatur : for it is sensible enough in the declaration : and 
 if it were not, the declaration is good ; for an insensible clause does not 
 make the rest of the deed vitious which is sensible in itself. 
 
 3. The great exception was, that the plaintiff in his declaration has 
 not averred that he had conveyed the lands, or at least tendered a con- 
 veyance of them ; for the defendant has no remedy to obtain the lands, 
 and therefore the plaintiff ought to have conveyed them, or tendered 
 a conveyance of them, before he brought his action for the money. 
 
 And it was argued by Withins, that if liy one single deed two things 
 are to be performed, namely, one by the plaintiff and the other by the 
 defendant, if there be no mutual remedy, the plaintiff ought to aver per- 
 formance of his part: Trin. 12 Jac. 1, between Holder v. Tayloe\ 
 Ughtred's case', and Sir Richard Pool's case there cited, and Gray's case': 
 
 1 1 Rol. Abr. 518 (C), pi. 2, 3. =7 Kep. 10. 
 
 ■■' 5 Rep. 78, 79, s.c. Cro. Eliz. 405.
 
 708 KINGSTON V. PRESTON". [CHAP. VII 
 
 and that the word (pro) made a condition in things executory. And here 
 in this case it is a condition precedent which ought to be performed 
 before the action brouglit ; wherefore he prayed judgment for the de- 
 fendant. 
 
 But it was adjudged Ijy the Court, that the action was well brought 
 without an averment of the conveyance of the land ; because it shall be 
 intended that botli parties have sealed the specialty. And if the plaintiff 
 lias not conveyed the land to the defendant, he has also an action of 
 covenant against the plaintiff upon tlie agreement contained in the deed, 
 which amounts to a covenant on the part of the plaintiff to convey the 
 land ; and so each party has mutual remedy against the other. But it 
 might be otherwise if the specialty had been the words of the defendant 
 only, and not tlie words of tioth parties by way of agreement as it is here. 
 And by the conclusion of the deed it is said, that both parties had sealed 
 it ; and therefore judgment was given for the plaintiff, wliich was after- 
 wards affirmed in the Exchequer Chamber, Trin. 22 of King Charles the 
 Second. 
 
 KINGSTON V. PEESTON. 
 In the King's Bench, Easter Term, 1773. 
 
 [Cited at lenrith in Jones v. Barkley, Douglas, 689.] 
 
 Action of debt, for non-performance of covenants contained in cer- 
 tain articles of agreement between the plaintiff and the defendant. 
 
 The declaration stated : — That, by articles made the 2-ith of March, 
 1770, the plaintiff, for the considerations thereinafter mentioned, covenanted, 
 with the defendant, to serve liim for one year and a quarter next ensuing, 
 as a covenant-servant, in his trade of a silk-mercer, at 200?. a year, and in 
 consideration of the pi-emises, tlie defendant covenanted, that at the end 
 of the year and a quarter, he would give up his business of a mercer to 
 the plaintiff, and a nephew of the defendant, or some other person to be 
 nominated by the defendant, and to give up to them his stock in trade, at 
 a fair valuation ; and that, between the young traders, deeds of partner- 
 ship should be executed for 14 years, and, from and immediately after the 
 execution of the said deeds, the defendant would permit the said young 
 traders to carry on the said business in the defendant's house. 
 
 Then the declaration stated a covenant by the plaintiff, that lie would 
 accept the business and stock in trade, at a fair valuation, with the de- 
 fendant's nephew, or such other person, &c. and execute such other deeds 
 of partnership, and, further, that the plaintiff should, and would, at, and 
 ))ofore, the sealing and delivery of the deeds, cause and procure good and
 
 SECT, ll] KINGSTON f. PRESTOX. 7(i!1 
 
 sufficient spcurity to he given to tin; defendant, to be njiproved of l)y tlie 
 defendant, for the payment of 250^. monthly, to the defendant, in lieu of 
 a moiety of the monthly produce of the stock in trade, until the value of 
 the stock should be reduced to 4000/. 
 
 Then the plaintiff averred, that he had performed, and been ready 
 to perform, his covenants, and assigned for breach, on tlie ]iart of the de- 
 fendant, that he had refused to surrender and yi\(> iip his Imsiness, at the 
 end of the said year and a quarter. 
 
 The defendant pleaded, 1. That the plaintiH" did not ofl'er sufficient 
 security ; and, 2. That he did not gi\ e sufficient security for tiie pay- 
 ment of the 2.50/. itc. And the plaintiffi demurred generally to both 
 pleas. 
 
 On the part of the plaintiff, the cai:e was argued by Mr. Ihdlfr, who 
 contended, that the covenants were mutual and independent, and, there- 
 fore, a plea of the breach of one of the covenants to be performed by the 
 plaintiff was no bar to an action for a breach by the defendant of one of 
 which he had bound himself to perform, but that the defendant might 
 have his remedy for the breach by the plaintiff, in a separate action. 
 
 On the other side, i\Ir. Grose, insisted, that the covenants were de- 
 pendent in their nature, and, therefore, performance must be alleged : The 
 security to be given for the money, was manifestly the chief object of the 
 transaction, and it would be highly unreasonable to construe the agreement, 
 so as to oblige the defendant to give up a beneficial business, and valuable 
 stock in trade, and trust to the plaintiff's personal security, (who might, 
 and indeed was admitted to be worth nothing,) for the pei'formance of 
 liis part. 
 
 In delivering the judgment of the Court, Lnnn IMan'sfikm) expressed 
 himself to the following effect : — 
 
 There are three kinds of covenants : 
 
 1. Such as are called mutual and dependent, where either party m.ay 
 recover damages from the other, for the injuiy he may ha\e recei\ed 
 by a breach of the covenants in his favour, and where it is no excuse for 
 the defendant, to allege a breach of the covenants on the part of the 
 [ilaintiff. 
 
 2. There are covenants which are conditions and dependent, in which 
 the performance of one depends on the prioi' performance of another, and, 
 therefore, till this prior condition is performed, the other party is not liable 
 to an action on his covenant. 
 
 3. There is also a third sort of covenants, which are mutual conditions 
 to be performed at the same time ; and, in these, if one party was ready, 
 and offered, to perform his part, and the other neglected, or refused, to 
 perform his, he who was ready, and offered, has fulfilled his engagement, 
 and may maintain an action for the default of the ntlirr; though it is nut 
 iiTt.'iin that either is ohlitjnd to do the lii-st .-let. 
 
 ] . 49
 
 770 MORTON v. LAMl!. [CHAP. VIT 
 
 His Lordship then proceeded to say, that the dependence or inde- 
 pendence of covenants was to be collected from the evident sense and 
 meaning of the parties, and, that, however transposed they might be in 
 the deed, their precedency must depend on the order of time in which the 
 intent of the transaction requires their performance. That, in the case 
 before the Court, it would be the greatest injustice if the plaintifT should 
 prevail : The essence of the agreement was, that the defendant should not 
 trust to the personal security of the plaintiff, but, before he delivered up 
 his stock and business, should have good security for the payment of the 
 money. The giving such security, therefore, must necessarily be a con- 
 dition precedent. 
 
 Judgment was accordingly given for the defendant, because the part 
 to be performed by the plaintiff was clearly a condition precedent. 
 
 MORTON V. LAMB. 
 In the King's Bench, February 1, 1797. 
 
 [Efpoiied in 7 Term lieports, 125.] 
 
 In an action on the case the plaintiff declared against the defendant 
 for that whereas on the 10th Fel>. 1796, at Manchester in the county of 
 Lancaster, in consideration that the plaintiff, at the special instance and 
 request of the defendant, had then and there bought of the defendant 200 
 quarters of wheat at 51. Os. 6d. per quarter, such price to be therefore 
 paid by the plaintiff to the defendant, he the defendant undertook and 
 then and there promised the plaintiff to deliver the said corn to him (the 
 plaintiff') at Shardlow in the county of Derby in one month from that 
 time, viz. of the sale; and then he alleged that although he (the plaintifl") 
 always from the time of making such sale for the space of one month then 
 next following and afterwards was ready and willing to receive the said 
 corn at Shardlow, yet tlie defendant not regarding his said promise, &c. 
 did not in one month from the time of the making of such sale as aforesaid 
 or at any other time deliver the said corn to the plaintiff at SJiardlow or 
 elsewhere, although he (the defendant) was often requested so to do, &e. 
 The defendant pleaded the general issue ; and at the trial the plaintiff 
 recovered a verdict. 
 
 Holroyd obtained, in the last term, a rule calling on the plaintiff to 
 shew cause why the judgment should not be arrested, because it was not 
 averred that the plaintiff' had tendered to the defendant the price of the 
 corn, or was ready to have paid for it on delivery. He siiid this was 
 necessary on the principle establislied in many cases, pai'ticularly in
 
 SECT. Il] MORtOX ('. LAMB. 771 
 
 T/iorpe V. Tliori>i'\ Callonel v. /!r!;/;/s-, Kingston v. I'reslon', Jones v. 
 Jiarclaij*, and Goodisson v. Nunn^, tliflt wlien soiiietliing is to be clone l)v 
 both parties to a contract at the same time, as in this case tlie tendering; 
 of the money and the delivetj- of the corn, there tlie party suing the other 
 for non-performance of liis part must aver an ofter at least at the same 
 time to perform what was to be done by himself. 
 
 LaiD, Wood, and Scm'lett, now shewed cause. The covenants here are 
 mutual and independent, and each party has a remedy by action against 
 the other for non-performance of his part. But if there be any precedence 
 between tlietn, the delivery of the goods ought, in the regular order of 
 things, to precede the payment of tlie price. In neither case can the 
 averment contended for be necessary. The distinction is taken in many 
 cases that where two things are to be done, and the time of doing it is 
 mentioned for one and not for the other, there the thing for doing which 
 the time is stipulated must be done first, and so averred to be. Passord v. 
 Wehbe, 2 Rol. Rep. 88. Pordoge v. Cole, 1 Saund. .319. Peeters v. Opie, 2 
 Saund. 350. 1 Ventr. 177, 214. Elwick v. Cudworlh, 1 Lutwich, 41)3. 
 Hilton V. Smith, ib. 496. So in Thorpe v. Thorpe", it was said by Holt, 
 Ch. J. that if by the agreement a day certain is appointed for the paj'ment 
 of money, and this day is to happen before the act can be performed for 
 wliich the money is to be paid, there although the words are that he shall 
 pay so much for the performance of the act, yet after the day appointed 
 the party shall have his action for the money before the thing is performed, 
 and that is a stronger case than the present, because the act for which the 
 recompense is to be given ought in reason to precede the recompense itself. 
 In Blackwell v. Nasli', the plaintiff declared in debt for a penalty on a 
 covenant that he should transfer so much stock to the defendant on or 
 before the 21st September, and that the defendant in consideration of tlie 
 premises covenanted to accept and pay for it; and then tlie plaintiff 
 averred that he was ready and offered to transfer the stock on that day, 
 but that the defendant refused to accept or pay for it : it was objected in 
 arrest of judgment that the actual transfer of the stock was a condition 
 precedent which ought to have been averred : but tlie Court held that "in 
 consideration of the premises " meant in consideration of the covenant to 
 transfer, and not of an actual transferring, for which the defendant had 
 his remedy; though if it did mean the latter, a tender and a refusal would 
 amount to performance. And they added that in all such cases tlie great 
 question was, who was to do the first act ? J!ut that where the transfer 
 was to be upon payment, there was no colour to make the transfer a con- 
 dition precedent. The same doctrine was held in Daioson v. J/yer". 
 These cases went on tiiS ground that the parties had mutual remedies on 
 their reciprocal promises, and therefore tlierc was no need of the averment 
 
 I Salk. 171. = lb. li:!. ■• DouKl. 3rd ed. 0,88. •• Dongl. 3i(l od. r,81. 
 
 •■• 1 T. R. 761. " Salk. 171 ; 1 Ltitw. 2.-,0. s.c. 
 
 ' 1 Stra. 53.3, « 1 Stra. 71-i. 
 
 49—2
 
 77-2 MORTON V. LAMI'.. [CHAP. VII 
 
 contended for. But the case of Merrll v. Haue' applies as strongly in 
 another point of view. There the plaintiff declared on an agreement that 
 in consideration of '2521. paid to the defendant he agreed to transfer GOOO/. 
 South-sea stock to the plaintiff or his executors, <tc. at any time before the 
 Otli January, 1720, within three days after demand in writing, upon pay- 
 ment of the further sum of 9000^. then he averred the demand in writing, 
 and that he attended on the day, but that the defendant did not appear to 
 transfer : one of the objections was, that the plaintiff had not averred 
 that he had the money there on the day to have paid upon the transfer : 
 but the Court said that as to the plaintiff's not shewing a tender that 
 ou^ht to have come from the defendant by way of excuse, that he was 
 there ready to have transferred if the plaintiff' had been there to have paid 
 the money. To apply therefore the reasoning of all these authorities to 
 the present case : — Here the tirst act to be done was by the defendant, 
 namely, the carrying of the corn to Shardlow; by not doing which he 
 broke his agreement, and a cause of action accrued to the plaintiff" 
 according to that class of cases, wherein agreements of this sort have been 
 construed to give mutual remedies to the parties. But admitting that he 
 was not bound to deliver the corn there until the plaintiff was prepared to 
 pay for it ; still that ought to come from the defendant by way of excuse, 
 and the tender of payment was not necessary to be averred by the plaintiff' 
 as a condition precedent to the right of action. The defendant might have 
 shewn in excuse for the non-performance on his part, either that he carried 
 the corn to the place, and was ready to have delivered it, but that the 
 plaintiff' was not there to receive it ; or that the plaintiff refused to receive 
 it; or that he was not ready to pay for it. Lancashire v. Killingivorth, 12 
 Mod. 531. Salk. 623. Ufjhtred's case, 7 Co. 10. Where an action is 
 brought for money due, the defendant may shew in his defence a tender 
 and refusal, or that he was prepared at the day and place appointed to 
 pay the money, but that the plaintiff' was not there to receive it ; yet it 
 never was held necessary for the plaintiff to aver in his declaration that he 
 was ready to receive it. And here, if the readiness to pay had been 
 averred, it could have answei'ed no purpose ; because no issue could have 
 been taken on it. Besides in no case is tender of payment necessary to be 
 averred when the contract is executory, as it is in this case ; for there the 
 parties necessarily rely upon the mutual remedies arising out of it ; they 
 give mutual credit to each other. All the cases cited on the other side are, 
 if strictly considered, cases of condition precedent. Several of them, as 
 well as the subsequent cases of Caiiiphell v. Jones", and Porter v. Shepherd', 
 laid down the rule that whether covenants be or be not independent on 
 each other must depend on the good sense of the thing ; that is, who in 
 the fair sense and meaning of the parties was required to do the first act. 
 Now jiere tliere is no doulit tliat the tirst act was to be done by the 
 
 > 1 Stra. 458. ^ i; T. B. 370. ^ lb. flCl.
 
 SECT. Il] MOKTON V. LAMB. 77;) 
 
 defendant, which he neglected to do; and it would be ab.surd to require a 
 person to pay for goods before he had received them; though if he were 
 not ready to pay for them at the time when the other was ready to deliver 
 them, that might be a reason for the non-delivery. But still that is only 
 matter of defence and excuse on the part of the defendant, wliich it is 
 incumbent on him to shew. And yet tiie effect of the averment required 
 is, that the plaintiff was bound to tender the price before tlie goods were 
 even offered to him. 
 
 Ilolroud contra. Tliis action is not brought against the defendant for 
 having omitted to carry the corn to Sliardlow, even allowing that to be 
 the first act to be done ; and tlierefore much of the plaintiffs argument 
 does not apply. But the ground of complaint is that it was not delivered 
 to him there ; and consequently upon this form of declaring it may be 
 assumed that the defendant did carry the corn there. The question then 
 comes to this, whether the defendant was bound to deliver his corn, the 
 jjlaintiff not being there ready to pay for it. For if not, then it follows, 
 according to all the late determinations, that he ought to have averred a 
 tender of the price, or that he was there ready to pay for it, if the defen- 
 dant had been there ready to receive it, and deliver the corn. And for 
 this purpose it is not necessary to shew that the tender of the price was a 
 condition precedent, strictly so considered ; for according to Goodisson v. 
 Nunn^, and Kingston v» Preston', if tlie acts are concurrent and in the 
 nature of the transaction to be done at the same time, before one of the 
 parties can maintain an action against the other for the non-performance 
 of his part, lie must aver that he performed or was ready to perform every 
 thing on his own part. CaUonel v. Briijys^ is in point. That was an 
 executory agreement, like the present, to pay so much mone}' six months 
 after the bargain, the plaintiff transferring stock. There Lord Holt said 
 "if either party would sue upon this agreement, the plaintiff for not pay- 
 ing, or the defendant for not transferring, the one must aver and pro^e a 
 transfer or a tender, and the other a payment or a tender ; and this," says 
 lie, "though there be mutual promises. If I sell you my horse for \Ql. if 
 you will have the horse, I must have the money; or if I will have tlie 
 money, you must have the horse." Or according to Lancashire v. 
 Killinyiuofth', the plaintiff should have averred that he was ready at the 
 place to have received the corn on the last day of the time within which it 
 was to be delivered, and ready and willing to have paid the price; but that 
 )io person was there on the part of the defendant to deliver the corn. The 
 delivery of the corn, and the payment of tlie price, were concurrent acts 
 to be done by the parties at the same time, the one depending on the 
 other; and if so, then within the principle of all the modern cases, the 
 plaintiff ouglit to have averred in his declaration a tender of the price, for 
 want of which it is bad. 
 
 ' J T. K. Till. - Dou-1. :jid cJ. OS.^. '■• Salk. li:!. ' (Sulk. iri:\.
 
 77-t MORTON v. LAMB. [CHAP. VII 
 
 LoKD Kenyon, Cli. J. If tills question depended on the techniciil 
 niceties of pleading, I should not feel so much confidence as I do : but it 
 dejienda altogether on the true construction of this agreement. The 
 defendant agreed with the plaintifi' for a certain quantity of corn, to be 
 delivered at Shardlow within a certain time ; and there can be no doubt 
 but that the parties intended that the payment sliould be made at the time 
 of the delivery. It is not imputed to the defendant that he did not carry 
 the corn to Shardlow, but that he did not deliver it to the plaintifi' : to 
 this declaration the defendant objects, and says " I did not deliver the 
 corn to. you (the plaintiff), because you do not say that you were ready to 
 pay for it; and if you were not ready, I am not bound to deliver the 
 corn;" and the question is, whether that should or should not have been 
 alleged. The case decided by Lord Holt, in Salk. 112, if indeed so plain 
 a case wanted that authority to support it, sliews that where two concurrent 
 acts are to be done, the party who sues the other for non-j)erforniance 
 must aver that he had performed, or was ready to perform, his part of the 
 contract. Then the plaintiff in this case cannot impute to the defendant 
 the non-delivery of the corn, without alleging that he was ready to pay the 
 price of it. A plaintiif, who comes into a court of justice, must shew that 
 he is in a condition to maintain his action. But it has been argued that 
 the delivery of the corn was a condition precedent, and some cases have 
 been cited to prove it : but they do not appear to me to be applicaUe. In 
 the one in Saunders', the party was to pull down a wall, and was then to 
 be paid for it; there is no doubt but that the pulling down of the wall 
 was a condition precedent to the payment ; the act was to be done, and 
 then the price was to be paid for it. So in the case in Salk. 171, where 
 work was to be done, and then tlie workman was to be paid. And in 
 ordinary cases of this kind the work is to be done before the wages are 
 earned ; but those cases do not apply to the present, where both the acts 
 are to be done at the same time. Speaking of conditions precedent and 
 subsequent in other cases only leads to confusion. In the case of Campbell 
 V. Junes, I thought, and still continue of that opinion, that whether 
 covenants be or be not independent of each other must depend on the good 
 sense of the case, and on the order in wliich the several things are to be 
 done : but here both things, the delivery of the corn by one, and the 
 payment by the other, were to be done at the same time; and as the 
 plaintitt has not averred that he was ready to pay for the corn, he cannot 
 maintain this action against the defendant for not delivering it. 
 
 Grose, J. It is difficult to reconcile all the cases in the books on the 
 subject of conditions precedent; but the good sense to be extracted from 
 them all is, that if one party covenant to do one thing in consideration of 
 tlie other party's doing another, each must be ready to perform his part of 
 the contract at the time he cliarges the other with non-performance. Ileic 
 
 ' \i Sauuders, 350. 
 
 I
 
 SECT. II] MORTON V. LAMU. 77.') 
 
 the question is, what was the iiiteutii)n of the parties; tliey clearly 
 iiitencled that soiiietiiin<j sliould he done hy eiicli at the same time. The 
 corn was to be delivered at Shardlow to the plaintitl" for a certain pi-ico to 
 he thei'efore paid by iiim, that is, at the time of the delivery; then the 
 readiness to pay should have been averred by the plaintiff. 
 
 Lawrence, J. It has been argued, on behalf of the plaintiff, that this 
 must be considered as a declaration on mutual promises, and that as this is 
 a demand on the defendant on tlie ground of some mutual promise made 
 by him, and which was the consideration of the plaintiff's promise, it was 
 not necessary to aver pei-formance on his part : but if so, the declaration 
 is not adapted to the truth of the case, in not stating that the defendant's 
 promise was in consideration of the plaintift"s. But on this declaration I 
 can only consider it as an agreement by the defendant to deliver the corn 
 at Shardlow on being paid for it. The payment of the money was to be 
 an act concurrent with the delivery; and then the case is like that of 
 Vallonel v. Briggs, which was on an agreement to pay so nnich money six 
 months after the bargain, tiie plaintiff transferring stock; and there Lord 
 Holt said, " If either party would sue upon this agreement, the plaintiff 
 for not paying, or the defendant for not transferring, the one must aver 
 and prove a transfer or a tender : " he did not say, that the not doing it 
 should come from the defendant by way of excuse, but that the doing it 
 must be alleged in the declaration ; and that affords an answer to great 
 part of the argument urged on belialf of the defendant in this case. The 
 tendering of the money by the plaintiff' makes part of the plaintiff's title 
 to recover, and he must set out the whole of his title. The strongest case 
 cited for the defendant was that of Merrit v. Rane' : but that does not 
 appear to me of sufficient weight to overturn the authority of the case of 
 Callunel v. Briggs. I do not quite understand what the Court there said, 
 that it was not necessary to allege a tender, for that it should have come 
 from the defendant by way of excuse ; for as it was stated that the, 
 plaintiff's agent was ready to receive a transfer of the stock, but that the 
 defendant did not attend, it would have been absurd to state a tender of 
 the money to a person who was not pi'esent to receive it. There is 
 however another case, not referred to in the argument, Z«a v. Exelbij^, 
 which is an authority to shew that the plaintiff in this case should have 
 averred a tender. There the plaintiff declared that in consideration that 
 lie had promised to pay the defendant (who was possessed of a lease for 
 years, the inheritance of which was in the plaintiff) a certain sum on such 
 a day,, the defendant promised on payment to surrender to him the 
 lease; and that he had tendered the money at the time, but that the 
 defendant had not surrendered; and on motion in arrest of judgment, 
 because it was not alleged that the defendant refused as well as that the 
 plaintiff tendered, the Court held that the declaration W!«s bad for that 
 
 ' 1 Stra. 4r,H. - Cro. Eli/.. 888.
 
 776 BETTINI V. GYE. [OHAP. VII 
 
 reason. Therefore, on the authority of tliat case, and of tliat of Callonel 
 V. Bri(j<jn, I am of opinion that the declaration cannot be supported, and 
 tliat tlie judguieut must be arrested. 
 
 Rule absolute. 
 
 BETTINI V. GYE. 
 In the High Court of Justice, January 25, 1876. 
 
 [Reported in Law Reports, 1 Queen's Bench Division, 183.] 
 
 Third count, that the defendant was and is the director of the Royal 
 Italian Opera in London, and tlie plaintiff was and is a dramatic artist and 
 professional singer, and thereupon it was agreed by and between the 
 plaintifi' and the defendant in parts beyond the seas, to wit, at Milan, in 
 Italy, by an agreement in writing in the French language, of which the 
 translation is as follows : — 
 
 " Royal Italian Opera, 
 
 " Covent Garden, London. 
 "Year 1875. 
 
 " The undersigned, Mr. Frederick Gye, gentleman, and director of the 
 Royal Italian Opera in London, of the one part, and Mr. Bettini, dramatic 
 artist, on the other part, have agreed as follows : 
 
 " 1. Mr. Bettini undertakes to till the part of primo tenor assoluto in 
 the theatres, halls, and drawing rooms, both public and private, in Great 
 Britain and in Ireland during the period of his engagement with Mr. Gye. 
 
 "2. This engagement shall begin on the 30th of March, 1875, and 
 shall terminate on the 13th of July, 1875. 
 
 "3. The salary of Mr. Bettini shall be 150/. per month, to be paid 
 monthly. 
 
 " 4. Mr. Bettini shall sing in concerts as well as in operas, but he 
 shall not sing anywhere out of the theatre in the United Kingdom of 
 Great Britain and Ireland from the 1st of January to the 31st of De- 
 cember, 1875, witliout the written permission of Mr. Gye, except at a 
 distance of more than fifty miles from London, and out of the season of 
 the theatre. 
 
 " 5. Mr Gye shall furnisli tlie costumes to Mr. Bettini for his cha- 
 racters according to the ordinary usage of theatres. 
 
 " 6. Mr. Bettini will conform to the ordinary rules of the theatre in 
 case of sickness, fire, rehearsals, &c. 
 
 " 7. Mr. Bettini agrees to be in London witliout fail at least six days 
 before the commencement of his engagement, for the puiposc of rehearsals. 
 
 I
 
 SKCT. 11] BETTINI V. OYE. 777 
 
 " 8. In case Mr. Gye shall require the services of Mr. Bettini at a 
 distance of more than ten miles from London, he shall pay his tra\-ellin<' 
 expenses. 
 
 " 9. Mr. Bettini shall not be obliged to sing more than four times a 
 week in opera. Mr. Bettini, in order to assist the direction of Mr. Gye, 
 -will sing, upon the request of Mr Gye, in the same characters in which he 
 lias already sung, and in other characters of equal position. In case of 
 the sickness of other artists, Mr. Bettini agrees to replace them in tlieir 
 characters of first tenor assoluto. 
 
 " 10. Mr. Gye shall have the right to prolong the period limited above 
 upon the same conditions, provided that the period does not go beyond the 
 end of the month of August. 
 
 "F. Gye, 
 
 "Milan, 14 Dec. 1874." 
 That the plaintiff did not sing anywhere out of the said theatre in the 
 United Kingdom of Great Britain and Ireland, from the 1st of January, 
 1875, to the date of the commencement of this action, without the written 
 permission of the defendant, except at a distance of more than fifty miles 
 from London, and out of the season of the said theatre. That the plaintiff 
 was prevented by temporary iUness from being in London before the 28th 
 of March, 1875, but he did arrive in London on that day; and, save as 
 aforesaid, the plaintiff has always performed his said agreement, and was 
 and is ready and willing to perform his part of the said agreement, of all 
 which the defendant had notice, and all things were done and happened, 
 and all conditions were fulfilled and all times elapsed necessary to entitle 
 the plaintiff to a performance by the defendant of the said agreement and 
 to maintain this action. Yet the defendant did not nor wotdd i-eceive the 
 plaintiff into his said service, but wholly refused so to do, and wrongfully 
 e.xonerated and discharged the plaintiff from his said agreement, and from 
 the performance of the said agreement on the plaintiff's part, and wrong- 
 fully put an end to and determined the said agreement, whereby the 
 plaintiff was damnified. 
 
 The defendant pleaded, ninthly, to the third count, that tlie plaintiff 
 was not in London sL\; days before the commencement of the said en- 
 gagement for the purpose of rehearsals, nor had the defendant notice 
 before the said six days of the plaintiff's inability to be in London, or that 
 he would not be in London six days before the commencement of his said 
 engagement for the purpose of rehearsals, nor was the plaintiff read}- and 
 willing to attend such rehearsals, although it was necessary for him to do 
 so, wherefore the defendant did not nor would receive the plaintifi" into his 
 service in the capacity and on the terms aforesaid, which is the breach 
 complained of. 
 
 Demurrer to the ninth pica, and joindei'. 
 
 1875. Dec. 1.5. Marpl'i/, Q.C, (witli him .1. L. Smil/i), foi- the plaijitill'.
 
 778 BKTTINI V. GYE. [CHAP. VII 
 
 ill support of the demurrer, contended that the stipulation as to the attend- 
 ance of tlie plaintiff at reliearsals six days before the commencement of the 
 engagement was not a condition precedent, inasmuch as the plaintiif was 
 to sing during the engagement at concerts as well as in operas ; moreover, 
 the plaiutiti' was not to sing in London from the 1st of January, and he 
 had abstained from doing so. He cited Robinson v. Davison^, and MacAn- 
 drev) V. Chappie'. 
 
 Arthur Wilson (with him Percy Gije) for the defendant, contended that 
 the stipulation was a condition precedent. He cited Atkinson v. Iiell''\ 
 Gmvesv. Leyg*, Bradford v. Williams'', Tilleyv. Thomas", Jackson v. Uitiou 
 Marine Insurance Co.^ 
 
 Murphy, Q.C., in reply. 
 
 Cur. adv. vult. 
 
 1876. Jan. 25. The judgment of the Court (Blackburn, Quain, and 
 Archibald, JJ.) was delivered by 
 
 Blackburn, J. In this case the parties have entered into an agree- 
 ment in writing, which is set out on the record. 
 
 The Court must ascertain the intention of the parties, as is said by 
 Parke, B., in delivering the judgment of the Court in. Graves v, Legg', "to 
 be collected from the instrument and the circumstances legally admissible 
 in evidence with reference to which it is to be construed." He adds : 
 " One particular rule well acknowledged is, that where a covenant or 
 agreement goes to part of the consideration on both sides, and may be 
 compensated in damages, it is an independent covenant or contract." 
 There was no averment of any special circumstances existing in this case, 
 with reference to which the agreement was made, but the Court must look 
 at the general nature of such an engagement. By the 7th paragraph of 
 the agreement, " Mr. Bettini agrees to be in London without fail at least 
 six days before the commencement of his engagement for the purpose of 
 rehearsals." The engagement was to begin on the 30tli of Marcli, 1875. 
 It is admitted on the record that the plaintiff did not arrive in London till 
 the 28th of March, which is less than six days before the SOtli, and there- 
 fore it is clear that he has not fulfilled this part of the contract. 
 
 The question raised by the demurrer is, not wliether the plaintiff has 
 any excuse for failing to fulfil this part of his contract,, which may prevent 
 his being liable in damages for not doing so, but whether his failure to do 
 so justified the defendant in refusing to proceed with the engagement, and 
 fulfil his, the defendant's part. And the answer to that question depends 
 on whether this part of the contract is a condition precedent to tlie de- 
 fendant's liability, or only an independent agreement, a breach of which 
 
 1 Law Rep. G Ex. 269. - Law Rep. 1 C. P. 813. » g g. ^ c 277, 283. 
 
 * 3 Ex. 709 ; 23 L. J. (Ex.) 228. » Law Rep. 7 Ex. 2.59. " Law Rep. 3 Ch. 61. 
 ' Law Rep. 10 C. P. 125. « a Ex. at p. 716; 23 L. J. (Ex.) 228.
 
 SECT, ll] BETTINI V. GYE. 779 
 
 will not justify a repudiation of the contnict, liut will only be a cause of 
 action fof a compensation in damages. 
 
 This is a question which has very often been raised ; and the numerous 
 cases on the subject are collected in the first volume of Sir E. V. Williams' 
 Notes to Saunders, p. 5.54, in the notes to Pardaije v. Cole, and in the 
 second volume, p. 742, notes to Peelers v. Opie. 
 
 We tliink the answer to this question depends on the true construction 
 of the contract taken as a whole. 
 
 Parties may think some matter, apparently of very little importance, 
 essential ; and if they sufficiently express an intention to make the literal 
 fulfilment of such a thing a condition precedent, it will be one ; or they 
 may think that the performance of some matter, apparently of essential 
 importance and prima facie a condition precedent, is not really vital, and 
 may be compensated for in damages, and if they sufficiently expi-essed such 
 an intention, it will not be a condition precedent. 
 
 In this case, if to the 7th paragi-ajih of the agreement there had been 
 added words to this effect : "And if Mr. Bettini is not there at the stipulated 
 time Ml-. Gye may refuse to proceed further with the agreement ; " or if, 
 on the other hand, it had been said, " And if not there, Mr. Gye may 
 postpone the commencement of Mr. Bettini's engagement for as many days 
 as Mr. Bettini makes default, and he shall forfeit twice his salary for that 
 time," there could have been no question raised in the case. But there is 
 no such declaration of the intention of the parties either way. And in the 
 absence of such an express declaration, we think that we are to look to the 
 whole contract, and applying the rule stated by Parke, B., to be acknow- 
 ledged', see whether the particular stijjulation goes to the root of the 
 matter, so that a failure to perform it would render the performance of the 
 rest of the contract by the plaintiff a thing different in substance from what 
 the defendant has stipulated for ; or whether it merely partially atl'ects it 
 and may be compensated for in damages. Accordingly, as it is one or the 
 other, we think it must be taken to be or not to be intended to be a con- 
 dition precedent. 
 
 If the plaintiff's engagement had been, only to sing in operas at the 
 theatre, it might very w'ell be that previous attendance at rehearsals with 
 the actors in company with whom he was to perform was essential. And 
 if the engagement had been only for a few performances, or for a short 
 time, it would afford a strong argument that attendance for the purpose of 
 rehearsals during the six days immediately before the commencement of 
 the engagement was a vital part of the agreement. But we finrl, on looking 
 to the agreement, that the plaintiff was to sing in theatres, hall.s, and 
 drawing-rooms, both public and private, from the 30th of ilarch to the 
 13th of July, 187.5, and that he was to sing in concerts as well as in 
 operas, and was not to sing anywhere out of the theatre in (Jreat Britain 
 or Ireliind from the 1st of January to the 31st of December, 187.5, without 
 ' In (irairs v. I.rnrf, !) Kx. at p. 7I(i ; 2:! L. .1. (ICx.) 'i-is.
 
 7!S0 ANONYMOUS. [CHAP. VII 
 
 the written permission of the defendant, except at a distance of more than 
 lifty miles from London. 
 
 The phiintifl", therefore, has, in consequence of this agreement, been de- 
 prived of the power of earning anything in London from the 1st of January 
 to the 30tli of March ; and though the defendant has, perhaps, not received 
 any benefit from this, so as to preclude him from any longer treating as a 
 condition precedent what had originally been one, we think this at least 
 affords a strong argument for saying that subsequent stipulations are not 
 intended to be conditions precedent, unless the nature of the thing strongly 
 shews they must be so. 
 
 And, as far as we can see, the failure to attend at rehearsals during 
 the six days immediately before the 30tli of March could only atfect the 
 theatrical performances and, perhaps, the singing in duets or concerted 
 pieces during the first week or fortnight of this engagement, which is to 
 sing in theatres, halls, and drawing-rooms, and concerts for fifteen weeks. 
 
 We think, therefore, that it does not go to the root of the matter so as 
 to require us to consider it a condition precedent. 
 
 The defendant must, therefore, we think, seek redress by a cross-claim 
 for damages. 
 
 Judgment must be given for the plaintift'. 
 
 Judgment for the plaintiff. 
 
 SECTION IIL 
 
 REMEDIES FOK BREACH OF COSTRACT. 
 
 ANONYMOUS. 
 
 In Chancery, Easter Term, 1468. 
 
 [Reported in Year Book, 8 Edward IV. folio 46, plaeitum 11.] 
 
 A SUBPCENA was sued in the Chancery for that, wliereas the defendant 
 had made the plaintiff procurator of his benefice, and pledged his faith to 
 the plaintiif that he would keep him indemnified in respect of the occupa- 
 tion, the plaintifi' shewed that the defendant resigned the benefice without 
 acquainting the plaintifl'; and for occupying the benefice after tlie resigna- 
 tion plaintiff had been vexed and harassed. 
 
 Genney : It seems that he sjiall be sent to sue in Court Christian for 
 the infraction of faith ; the same as if I promise and affiance a woman to 
 marry her, and do it not, she shall sue in Court Christian, and not in tliis 
 Court.
 
 SECT. Ill] ANONYMOUS. 781 
 
 The Ch.\N('ELLOU : You say, to visit the infraction of faitii lie must sue 
 a citation in the spiritual court. But in this case, inasmuch as tlie 
 plaintiff has suftered damage by the non-perfonuance of the promise, lie 
 shall have remedy here. 
 
 Gexney : Sir, so far as this promise is a covenant, — and it is his folly 
 that he was willing to do the thing, — he could iiave liad i-emedy l)y our 
 law. If I jiromise you to huild you a housi-, and I do it not, you shall 
 have remedy by subpa>na. 
 
 The Chancellor: He shall'; so you might say, if I enfeofl" a man 
 upon trust, and he will not do my will, I sliall not have remedy witli 
 you, for it is my folly to enfeofl" a person wlio will not do my will. But 
 he shall have remedy in this Court; for God is procurator of the hereafter. 
 (Deus est procurator yiUiirorum.) 
 
 ANONYMOUS. 
 In the King's Bench, Michaelmas Ter.h, 14S7. 
 
 [Rejiorti-d ill Year Boid; 3 Ileiinj VII., folio 14, pUicituiii 20.] 
 
 One brought an action on the case, and counted that the defendant 
 undertook for a certain sum, to wit, 10/., on behalf of the plaintifi' to 
 induce one J, to lease to the plaintiff the manor of Dale for a term of 
 years ; but instead tliereof the defendant induced the said J. to grant the 
 manor to the defendant for a term of years, in deceit of the plaintiff, and 
 on this he founded his action. 
 
 Vavlsor : This action does not lie, except lie does something for tiio 
 plaintiff; it does not lie for non-feasance ; and here the defendant lias done 
 nothing. 
 
 Whereupon Brian : If there be an agreement between you and me, 
 that you make me an estate of such land, and of that same land you make 
 a feoti'ment to another, shall not I have an action on my case 1 As though 
 lie would sav, ves. — And with him the Court : for this that when he 
 
 • "In some old cases the Court of Chancery entertained suits in respect of huildins 
 contracts; and what has been considered one of the earliest traces of the jurisdiction 
 in specific performance is a dictum of (ienney, J. in the 8 Edward IV. that a promise 
 to build a house would be specifically enforced. Lord HnrdwicUe also maintained thi.s 
 view of the jurisdiction of the Court. But it is now clearly settled that, subject to 
 certain exceptions, the Court will not specifically enforce contracts to build or repair, 
 both because specific performance is 'decreed only where the party wants the thing in 
 specie and cannot have it any other way,' and because such contracts are for the most 
 part so uncertain that the Court would be unable to enforce its own judftment." Vry 
 on Specific rcrformiincp, 2ud filit. « 7li. p. 'M'>: sec also J 111. p. S. En.
 
 7,S2 ANONYMOUS. [CHAP. Vlt 
 
 undertakes to make tlie feoft'nient, to convey the land to anotlier is a great 
 mis-feasance. 
 
 Whereupon Vnvisor, seeing tlie opinion of the Court, traversed the 
 making of the promise. Vide H., 19 Hen. VI., fol. 49 ; T., 46 Edw. III., 
 fol. 19 ; where action on tlie case lies either for a mis-feasance or a non- 
 feasance. 
 
 I 
 
 ANONYMOUS. 
 
 Ix TOE King's Bench, Mich.velmA3 Teem, 150-5. 
 
 [Reporli'J ill Year Book, 21 Hennj VII, folio 41, phtcitum 6C.] 
 
 NoTA. If one make a covenant to build nie a house bj' such a day, 
 and he does nothing of this, I shall have an action on my case for this 
 non-feasance, for I am in damage by it ; per Fineux, Chief Justice. And 
 he said that it was adjudged accordingly, and he held it to be law. And 
 so it is if a man make a bargain with me that I shall have his land to me 
 and my heirs for '20!., and that he will make an estate to me ; if I pay 
 him the 20^. and he will not make the estate to me according to the 
 covenant I shall have an action on my case ; and there is no need to sue 
 out a subpoena*. 
 
 * Beeves in his History of the English Law, Vol. 4, p. 171, thus refers to these 
 cases: — "The opinions delivered in the reigns of Henry VI. and Edward IV. in favour 
 of actions upon the case, for the non-iierforraanee of a promise, were confirmed by the 
 train of decisions in this reign. In .3 Hen. VII. an action was brought against a 
 defendant, who, for a sum of money, had undertaken to procure a lease for a person : 
 but instead thereof, he obtained it for himself, in deceit of the plaintiff. When it was 
 objected, upon the old notion, that nothing having been done, no action would lie; as 
 there was no mis-feasance, but merely a non-feasance; Brian demanded, whether if he 
 promised, upon consideration, to make a feoffment to one person, and afterwards made 
 it to another, that would not be a great mis-feasance'? endeavouring in this manner to 
 satisfy the scruples of such as still adhered to the ancient opinion; we are told tliat 
 the court agreed with him. Conformably with this decision, it was declared in 21 
 Hen. VII. by the whole court, that an action upon the case would lie as well for a 
 non-feasance as for a mal-feasance'-^; and this opinion was on another occasion again 
 recognised'; at which time it was said, that if a man bargained that another should 
 have his land in fee for such a sum of money, and neglected making an estate ac- 
 cordingly, an action upon the case would lie without any need of suing a subpoena in 
 chancery'. As the necessity of recurring to a court of equity to establish such agree- 
 ments was not now so absolute as before, there is no donbt but suits on such questions 
 fell back again into the old channel of the common law. The prodigious advantage of 
 this common-law remedy, to substantiate promises and undertakings, was soon dis- 
 cerned by the legislature, which, on this account, as well as on account of the other 
 applications that were made of this action, in this reign passed an act which gave to 
 the action upon the case the same process as was before in an action of debt." En. 
 
 ' 3 Hen. VII. 14. - 21 Hen. VII. 30. ' Ibid. 41. * Ibid.
 
 SECT. Ill] ASHBY r. WIIITK. 7S:? 
 
 ASHBY V. WHITE & AL. 
 
 In the Queen's Bench, Michaelmas Teum, 170:!. 
 
 [Reported in 1 Scilkcld, 19'.] 
 
 Action upon tlie case against the constal>les of Aylesliury, and declares 
 that the king's writ issued and was delivered to the sherifl" of Bucks, for 
 election of knights of the shire and burgesses of borough.?, to serve in 
 parliament; whereupon the sheritt' made out his precept to the defendants, 
 being constables of Aylesbury, for the election of two burges.ses for that 
 borough, which was delivered, and the burgesses duly assembled to choose, 
 &c. and that the plaintiff being duly qualified, itc. ofl'ered to give his voice 
 for Sir T. Lee, and S. Mayne, Esq. but the defendants obstructed him 
 from voting, and refused and would not receive his vote, nor allow it. 
 Upon not guilty, a verdict was found for the plaintitl, and, after motion in 
 arrest of judgment, the Court gave tiieir opinion seriatim. 
 
 Gould, J. was of opinion for the defendants, that the action was not 
 maintainable, because the constable acted as a judge, and not as an officer, 
 and that in a parliamentaiy matter. Also, because the liindering of a vote 
 is danuuim absque injuria. 9 H. VI., 60. 2 Lev. 114. 19. H. VI., 44. 
 Hob. 267. Farther, he held it would beget multiplicity of actions, (Vide 
 5 Co. Williams's case,) and that this was out of time. It ought at least to 
 follow and not to precede the adjudication of the House of Commons. 
 2 Cro. 368. The i-eason of Stirling's case was because the refusal of a poll 
 occasioned the loss of the place of bridge-master, which was a real profit : 
 and the case of an action by a freeman for refusing to admit his voice in 
 the election of a Lord Mayor was, because lie had no other remedy but 
 this action ; but this differs. Vide 2 Lev. 50. 2 Vent. 50. 2 Lev. 250. 
 
 PowYS, J., ad idem, That the defendant, tliough not propei'ly a judge, 
 is quasi a judge ; that when the matter comes before the House of Com- 
 mons, the plaintif}''s vote will be allowed ; and therefore he does not lose 
 his privilege ; de minimis non curat lex, and this injury, if it be one, comes 
 within that rule; and he mentioned the 7 &,S W. III., which gives an action 
 for a double return, to the candidate ; and that before the statute 23 H. 
 VI., the candidate had no action for a false return ; and that in 1641, there 
 were seventy double returns, and yet no action brought, or act made ; and 
 from those statutes giving new actions in those cases, he inferred no action 
 lay for the voter at common law. Further, the judgment here will not 
 bind the Commons, nor be evidence there ; for the Commons are not bound 
 by our determinations ; and, lastly, Omnis innovatio plus novitato pertur- 
 bat quam utilitate prodest. 1 Bui. 138. 
 
 1 Reported at length in 2 Ld. Raymond, 035, and in tlie first volume of Smith's 
 Leading Cases. Ed.
 
 7.S-t ASHBY V. WHITE. [CHAP. VII 
 
 Powell, J. diU'eroil fiom Gould and Powys, the one holding him judge, 
 the other quasi a judge, for he must be a judge or not a judge, and there is 
 not any medium : That here he is an officer ; as such lie is to execute the 
 king's writ, and has nothing but a niinistei'ial power. In other matters 
 Powell agreed witli the otlier two, uj'ging that the right of election of 
 membei-s must depend upon the right of the electors ; and the former the 
 pai-liament are to decide, and the plaintiff may petition the parliament to 
 determine it : and after that may have his action, but not before ; and 
 therefore was not without remedy. 
 
 IIoLT, C. J., contra. He held that the plaintiff' had a right to vote ; 
 that a freeholder has a right to vote by reason of liis freehold, and it is 
 a real right; and the value of his freehold was not material, till 8 H. VI., 
 c. 7, which requires it should be 40s. per annum ; tliat in boroughs they 
 have a right to vote ratione burgagii : and that in cities and corporations 
 it is a personal inheritance, and vested in the whole corporation, but to be 
 used and exercised by the particular members, and that such a franchise 
 cannot be gi'anted but to a corporation. Hob. 14. 12 Co. 120. Mo. 812. 
 And this is not a minimum in lege, but a noble privilege, which entitles 
 the subject to a share in the government and legislature : no laws can be 
 made to affect him or his property but by his own consent, given in person 
 if he be chosen, or l)y his representative if he is a voter : that if the 
 plaintifT has a right, he must in consequence liave a remedy to vindicate 
 that right ; for want of right and want of remedy is the same tiling. If a 
 statute gives a right, the common law will give a remedy to iiiaintain that 
 right ; a fortiori, where the common law gives a right, it gives a remedy to 
 assert it. This is an injury, and every injury imports a damage. Violat- 
 ing the right of another by a scandalous word is sufficient damage to give 
 an action, though the party suflTers not a farthing, and the pecuniary loss 
 ))e nothing. Where parliamentary matters come before us, as incident to 
 a cause of action on the property of the subject, which we in duty must 
 determine, though the incident matter be parliamentary, we must not be 
 deterred, but are bound by our oaths to determine it. There can be no 
 such method by petition as my brother Powell speaks of ; nor can the 
 parliament judge of this injury, nor give damages to the plaintiff' for it. 
 But judgment was given for the defendant. 
 
 Note; On Friday the 14th of .January, 1703, this judgment was 
 i-eversed in the House of Lords. Trevor, C. J. and Price and sixteen 
 Lords concurred with the three judges of B. R. The rest of the judges 
 and fifty Lords concurred with Holt, C. J. Although this matter relates 
 to the parliament, yet it is an injury precedaneous to the parliament, as 
 my Lord Hale said in the cause of Barnardiston v. Soame.
 
 SECT. Ill] nOBINSOX V. HARMAN. 78.) 
 
 ROBINSON V. HARMAN. 
 In the Exchequer, January 18, ll?4S. 
 
 [Reported in 1 E.relieqtier Reports, 850.] 
 
 Assumpsit on an agreement in writing, dated the ] 5th April, 1846, where, 
 by the defendant agreed " to grant and deliver to the plaintiif a good and 
 valid lea.se of a certain dwelling-liouse, &c., and otlier hereditaments and 
 premises in the agreement mentioned, for a term of twenty-one years from 
 the 29th day of September then next ensuing, at the yearly rent of 110/.," 
 ifec. The declaration set out the agreement in terms, and, after alleging 
 mutual promises, averred that, although the plaintiff had always been ready 
 and willing to accept a lease, yet the defendant did not nor would grant a 
 good and valid lease of the said dwelling-house, &c., and discharged the 
 plaintiff from preparing and tendering such lease, and wliolly neglected 
 and refused to grant or deliver tlie said or any lease whatever of the said 
 hereditaments and premises ; " whereby the plaintiff lost and was deprived 
 of great gains and profits, which would otherwise have accrued to liim, and 
 paid, expended, and incurred liability to pay divers sums of money, in 
 and about the preparation of the said agreement and lease, &c., amounting, 
 to wit, to 20/." 
 
 Plea, payment of 251. into court, and no damages ultra. 
 
 The plaintiff replied damages ultra, upon which issue was joined. 
 
 At the trial, before Lord Denman, C. J., at the Surrey Spring Assizes, 
 1847, it was proved that the plaintiff and defendant had entered into the 
 agreement set out in the declaration, by which the defendant agreed to 
 grant to the plaintiff a good and valid lease of a dwelling-house and 
 premises, situate in Higli-street, Croydon, for a term of twenty-one 
 years from the 29th September, 1846, at a yearly rent of 110/. The 
 premises in question had belonged to the defendant's father, wlio was 
 recently dead, and in consequence, the plaintiff's solicitor, while prepai-ing 
 the agreement, asked the defendant whether he was sure that he had 
 power to grant the lease without the concurrence of other parties, and sug- 
 gested that the will might have vested the legal estate, or the power of 
 leasing, in trustees. The defendant replied, that there was nothing of the 
 sort, that it was his property out and out, and that he alone had the 
 power of leasing. It appeared, however, tliat the defendant's father had 
 devised the premises in question (subject to an annuity of 300/. to his 
 daughter) to trustees, to pay the defendant a moiety of the rent during 
 his life only. The premises were worth considerably more than 110/. a 
 year, and the bill of the plaintiff's solicitor, for preparing the agreement 
 and lease, and investigating the title, amounted to 1.5/. 12s. 8f/. On the'
 
 786 ROBINSON V. HARMAN. [CHAP. VH 
 
 p.art of the defendant, evidence was tendered to shew tliat the plaintiff, 
 wlien he entered into the agreement, had full knowledge of the defendant's 
 incapacity to grant the lease ; but the learned judge ruled that such 
 evidence was inadmissible. It was urged, on the part of the defendant, 
 that the plaintiff could not recover damages for the loss of liis bargain ; 
 and tliat, as the sum paid into court exceeded the expenses which he had 
 been put to, the defendant was entitled to the verdict. The learned judge 
 was of a different opinion, and a verdict was found for the plaintifT for 
 2001, beyond the sum paid into court. 
 
 A rule nisi having been obtained to set aside the vei-dict, and for a new 
 trial, 
 
 Shee, Serjt., and Willos now shewed cause. 
 
 Montagu Chambers, in support of the rule. 
 
 Parke, B. The rule must be discharged. The defendant contracted 
 to grant a good and valid lease, and the learned judge was right in 
 rejecting evidence which would go to alter the contract admitted by the 
 plea. 
 
 The next question is, what damages is the plaintiff entitled to re- 
 cover ? The rule of the common law is, that where a party sustains a loss by 
 reason of a breach of contract, he is, so far as money can do it, to be 
 placed in the same situation, with respect to damages, as if the contract 
 had been performed. Tiie case of Flureau v. Thornhill qualified that 
 rule of the common law. It was there held, that contracts for tlie sale of 
 real estate are merely on condition that the vendor has a good title ; so 
 that, when a person contracts to sell real property, there is an implied 
 understanding that, if he fail to make a good title, the only damages re- 
 coverable are the expenses which the vendee may be put to in in- 
 vestigating the title. The present case comes within the rule of the 
 common law, and I am unable to distinguish it from Hopkins v. Grase- 
 brook. 
 
 Alderson, B. I am of the same opinion. The damages have been 
 assessed according to tlie general rule of law, that where a person makes a 
 contract and breaks it, he must pay the whole damage sustained. Upon 
 that general rule an exception was engrafted by the case of Flureau v. 
 Thornhill, and upon that exception the case of Hopkins v. Grazebrook 
 engrafted another exception. This case comes within the latter, by which 
 the old common-law rule has been restored. Therefore the defendant, 
 having undertaken to grant a valid lease, not liaving any colour of title, 
 must pay the loss which the plaintiff has sustained by not having that for 
 which he contracted. 
 
 Platt, B. Upon genertil principle, I cannot distinguish this case from 
 Hopkins v. Grazebrook. 
 
 Rule discharged.
 
 SECT, in] HADI.EY V. BAXENDALE. 7S7 
 
 HADLEY AND ANOTHER v. BAXENDALE AND OTHERS. 
 
 In the King's Ckncii, Fi:niii'ARY 2."., 1851. 
 
 IRcported in 9 A'.rc;iC(/»<'c nfportx, 34] ] 
 
 The fir.st count of the declaration stated, tliat, before and at the time 
 of the making by tlie defendants of the promises hereinafter mentioned, 
 the plaintiffs carried on the business of millers and mealmen in copartner- 
 siiip, and were proprietors and occupiers of the City Steam-Mills, in the 
 city of Gloucester, and were possessed of a steam-engine, by means of 
 which they worked the said mills, and therein cleaned corn, and ground 
 the same into meal, and dressed the same into flour, sharps, and bran, and 
 a certain portion of the said steam-engine, to wit, the crank shaft of the 
 said steam-engine, was broken and out of repair, whereby the said steam- 
 engine was prevented from working, and the plaintiffs were desirous of 
 liaving a new crank shaft made for the said mill, and had ordered the 
 same of certain persons trading under the name of W. Joyce it Co., at 
 Greenwich, in the county of Kent, who had contracted to make the said 
 new shaft for the plaintiflTs ; but before they could complete the said new 
 shaft it was necessary that the said broken shaft should be forwartled to 
 their works at Greenwich, in order that the said new shaft might be made 
 so as to fit the other parts of the said engine which were not injured, and 
 so that it might be substituted for the said broken shaft ; and the plaintiffs 
 were desirous of sending the said broken shaft to tiie said W. Joyce <fe Co. 
 for the purpose aforesaid; and the defendants, before and at the time of the 
 making of the said promises, were common carriers of goods und chattels for 
 iiire from Gloucester to Greenwich, and carried on such business of com- 
 mon carriers, under the name of "Pickford & Co.;" and the plaintiffs, at 
 the request of the defendants, delivered to them as such carriers the said 
 broken shaft, to be conveyed by the defendants as such carriers from 
 Gloucester to the said W. Joyce <fc Co., at Greenwich, and there to be 
 delivered for the plaintiff's on the second day after the day of sucli delivery, 
 for reward to the defendants; and in consideration tiiereof the defendants 
 then promises the plaintiffs to convey the said broken shaft from Glouces- 
 ter to Greenwich, and there on the said second day, to deliver the same 
 to the said W. Joyce & Co. for the plaintiflTs. And although such second 
 day elapsed before the commencement of this suit, yet the defendants did 
 not nor would deliver the said broken shaft at Greenwich on tiie said 
 second day, or to the said W. Joyce & Co. on the said second day, but 
 wholly neglected and refused so to do for the space of seven days after tiie 
 said shaft was so delivered to them as aforesaid. 
 
 The second count stated, that, the defendants being such carriers as 
 aforesaid, the plaintiffs, at the request of the defendants, caused to be
 
 788 HADLEY V. BAXENDALE. [OHAP. VII 
 
 delivered to them as such carriers the said broken shaft, to be conveyed by 
 the defendants from Gloucester aforesaid to the said W. Joyce & Co. at 
 Greenwich, and there to be delivered by the defendants for the plaintiffs, 
 within a reasonable time in that behalf, for reward to the defendants ; and 
 in consideration of the premises in this count mentioned, the defendants 
 promised the plaintiffs to use due and proper care and diligence in and 
 about the carrying and conveying the said broken shaft from Gloucester 
 aforesaid to the said W. Joyce & Co., at Greenwich, and there delivering 
 the same for the plaintiffs in a reasonable time then following for the 
 carriage, conveyance, and delivery of the said broken shaft as aforesaid; 
 and although such reasonable time elapsed long before the commencement 
 of this suit, yet the defendants did not nor would use due or proper care 
 or diligence in or about the carrying or conveying or delivering the said 
 broken shaft as aforesaid, within such reasonable time as aforesaid, but 
 wholly neglected and refused so to do ; and by reason of the carelessness, 
 negligence, and improper conduct of the defendants, the said broken shaft 
 was not delivered for the plaintiffs to the said W. Joyce & Co., or at 
 Greenwich, until the expiration of a long and unreasonable time after the 
 defendants received the same as aforesaid, and after the time when the 
 same should have been delivered for the plaintiffs; and by reason of the 
 several premises, the completing of the said new shaft was delayed for five 
 days, and the plaintiffs were prevented from working their said steam- 
 mills, and from cleaning corn, and grinding the same into meal, and 
 dressing the meal into flour, sharps, or bran, and from carrying on their 
 said business as millers and mealmen for the space of five days beyond the 
 time that they otherwise would have been prevented from so doing, and they 
 thereby were unable to supply many of tlieir customers with flour, sharps, 
 and bran during that period, and were obliged to buy flour to supply some 
 of their other customers, and lost the means and opportunity of selling 
 flour, sharps, and bran, and were deprived of gains and profits which 
 otherwise would have accrued to them, and were unable to employ their 
 workmen, to whom they were compelled to pay wages during that period, 
 and were otherwise injured, and the plaintifl's claim 300Z. 
 
 The defendants pleaded non assunipserunt to the first count; and to 
 the second payment of 25^. into Court in satisfaction of tlie plaintiffs' 
 claim under that count. The plaintiffs entered a nolle prosequi as to the 
 first count; and as to the second plea, they replied that the sum paid 
 into Court was not enough to satisfy the plaintiffs' claim in respect thereof ; 
 upon which replication issue was joined. 
 
 At the trial before Crompton, J., at the last Gloucester Assizes, it 
 appeared that the plaintifls carried on an extensive business as millers at 
 Gloucester; and that, on the lltli of May, their mill was stopped by a 
 breakage of the crank shaft by which the mill was worked. The steam- 
 engine wasmanufactured by Messrs. Joyce & Co., the engineei's, at Greenwich, 
 and it became necessary to send the shaft as a pattern for a new one to 
 Greenwich. The fracture \\.is discovered on the 12th, and on tlie 13tli
 
 SECT. Ill] HADLEY V. BAXENDALE. 7SI) 
 
 the plaintiffs sent one of tlieir servants to the office of the defendants, who 
 are the well-known carriers trading under the name of Pickford and Co., 
 for the purpose of having the shaft carried to Greenwich. The plaintiffs' 
 servant told the clerk that the mill was stopped, and that the shaft must 
 be sent immediately; and in answer to tlie inquiry when the shaft would 
 be taken, the answer was, that if it was sent up by twelve o'clock any day, 
 it would be delivered at Greenwich on the following day. On the follow- 
 ing day the shaft was taken by the defendants, before noon, for the pur- 
 pose of being conveyed to Greenwich, and the sum of 21. is. was paid for 
 its carriage for the whole distance; at the same time the defendants' clerk 
 was told that a special entiy, if required, should be made to hasten its 
 delivery. The delivery of the shaft at Greenwich was delayed by some 
 neglect; and the consequence was, that the plaintiffs did not receive the 
 new shaft for several days after they would otherwise have done, and the 
 working of their mill was thereby delayed, and they thereby lost the profits 
 they would otherwise have received. 
 
 On the part of the defendants, it was objected tliat these damages 
 were too remote, and that the defendants were not liable witli respect to 
 them. The learned Judge left tlie case generally to tlie jury, who found a 
 verdict with 251. damages beyond the amount paid into Court. 
 
 Whateley, in last Michaelmas Term, obtained a rule nisi for a new trial, 
 on the ground of misdirection. 
 
 Keating and Dojvdeswell (Feb. 1) shewed cause. The plaintiffs are 
 entitled to the amount awarded by the jury as damages. These damages 
 are not too remote, for they are not only the natural and necessary conse- 
 quence of the defendants' default, but tliey are the only loss which the 
 plaintiffs have actually sustained. The principle upon which damages are 
 assessed is founded upon that of rendering compensation to the injured 
 party. This important subject is ably treated in Sedgwick on the Measure 
 of Damages. And this particular branch of it is discussed in the third 
 chapter, where, after pointing out the distinction between the civil and 
 the French law, he says', "It is sometimes said, in regard to contracts, 
 that the defendant shall be held liable for those damages only which both 
 parties may fairly be supposed to have at the time contemplated as likely 
 to result from the nature of the agreement, and this appears to be the 
 rule adopted by the writers upon the civil law." In a subsequent passage 
 he says, "In cases of fraud the ci\-il law made a broad distinction*"; and 
 he adds, that "in such cases the debtor was liable for all the consequences." 
 It is difficult, however, to see wliat the ground of such principle is, and 
 how the ingredient of fraud can affect the question. For instance, if the 
 defendants had maliciously and fraudulently kept the shaft, it is not easy 
 to see wliy they should have been liable for these damages, if they are not 
 to be held so where the delay is occasioned by their negligence only. In 
 speaking of tlie rule respecting the breach of a conti'act to transport goods 
 ' Page tU. '' I'afc'e '!«•
 
 790 HADLEY V. BAXENDALE. [CHAP. VII 
 
 to a particular place, and in actions brought on agreements for the sale 
 and delivery of cliattels, the learned author lays it down, that, "In the 
 former case, the diflerence in value between the price at the point where 
 the goods are and the place wlicre they were to be delivered, is taken as 
 the measure of damages, which, in fact, amounts to an allowance of profits; 
 and in the latter case, a similar result is had by the application of the rale, 
 which gives the vendee the benefit of the rise of the market price'". The 
 several cases, English as well as American, are there collected and re- 
 viewed. [Parke, B. The sensible rule appears to be that which has been 
 laid down in France, and which is declared in their code — Code Civil, liv. 
 iii. tit. iii. ss. 1149, 1150, 1151, and which is thus translated in Sedgwick^: 
 "The damages due to the creditor consist in general of the loss that he 
 has sustained, and the profit which he has been prevented from acquiring, 
 subject to the modifications hereinafter contained. The debtor is only 
 liable for the damages foreseen, or which might have been foreseen, at the 
 time of the execution of the contract, when it is not owing to his fraud 
 that the agreement has been violated. Even in the case of non-perform- 
 ance of the contract, resulting from the fraud of the debtor, the damages 
 only comprise so much of the loss sustained by the creditor, and so much 
 of tlie profit which he has been prevented from acquiring, as directly and 
 immediately results from the non-performance of the contract."] If that 
 rule is to be adopted, there was ample evidence in the present case of the 
 defendants' knowledge of such a state of things as would necessarily result 
 in the damage the plaintiffs sufJered through the defendants' default. The 
 authorities are in the plaintiffs' favour upon the general ground. In 
 Nurse v. Harns^, which was an action for the breach of an agreement for 
 the letting of certain iron mills, the plaintiff was held entitled to a sum of 
 500?., awarded by reason of loss of stock laid in, although he had only 
 paid 10^. by way of consideration. In Borradaile v. Brunton'^, which 
 was an action for the breach of the warranty of a chain cable that it 
 sliould last two years as a substitute for a rope cable of sixteen inches, the 
 plaintiff was held entitled to recover for the loss of the anchor, which was 
 occasioned by the breaking of the cable within the specified time. [Alder- 
 son, B. Why should not the defendant have been liable for the loss of 
 the ship? Parke, B. Sedgwick doubts the correctness of that report'\ 
 Martin, B. Take the case of the non-delivery by a carrier of a delicate 
 piece of machinery, whereby the whole of an extensive mill is thrown out 
 of work for a considerable time; if the carrier is to be liable for the loss in 
 that case, he might incur damages to the extent of 10,000^. Parke, B., 
 referred to Everard v. Ilojikins".] These extreme cases, and the difficulty 
 
 • Page 80. 2 Page 67. - 1 Sir T. Eaj-m. 77. 
 
 •■ 8 Taunt. 535; 2 B. Moo. 582. 
 
 s The learned Judge has frequently observed of late that the 8th Taunton is of but 
 doubtful authority, as the cases were not reported by Mr. Taunton himself. 
 « 2 Bulst. 332.
 
 SECT. Ill] HADLEY V. BAXENDALE. 7<)1 
 
 which consequently exists in the estimation of the true amount of damages, 
 supports the view for which tiie plaintiffs contend, that the question is 
 properly for the decision of a jury, and therefore that this matter could 
 not properly have been withdrawn from their consideration. In Imjrnm 
 V. Lawson', the true principle w.as acted upon. That was an action for a 
 libel upon the plaintiff, who was the owner and master of a ship, which 
 he advertised to take passengers to the East Indies; and the libel imputed 
 that the vessel was not seaworthy, and that Jews had purcliased her to 
 take out convicts. Tiie Court held, that evidence shewing that the plain- 
 tiff"s profits after the publication of the libel were 1500^. below the usual 
 average, was admissible, to enable the jury to form an opinion as to the 
 nature of the plaintiff's business, and of his general rate of profit. Here, 
 also, the plaintiffs have not sustained any loss beyond that which was 
 submitted to the jury. Bodley v. Reynolds^ and Kettle v. Hu)it^ are 
 similar in principle. In the latter, it was held that the loss of the benefit 
 of trade, which a man suffers by the detention of his tools, is recoverable 
 as special damage. [Parke, B. Suppose, in the present case, that the 
 shaft had been lost, what would have been the damage to which the plain- 
 tiffs would have been entitled?] The loss they had sustained during the 
 time they were so deprived of their shaft, or until they could have obtained 
 a new one. In Black v. Baxendale", by reason of the defendant's omis- 
 sion to deliver the goods within a reasonable time at Bedford, the plain- 
 tifl''s agent, who had been sent there to meet the goods, was put to certain 
 additional expenses, and this Court held that such expenses might be given 
 by the jury as damages. In Brandt v. Bowlhy^, which was an action of 
 assumpsit against the defendants, as owners of a certain vessel, for not 
 delivering a cargo of wheat shipped to the plaintiffs, the cargo reached the 
 port of discharge but was not delivered ; the price of the cargo at the time 
 it reached the port of destination was held to be the true rule of damages. 
 "As between the parties in this cause, said Parke, J., "the plaintiffs are 
 entitled to be put in the same situation as they would have been in, if the 
 cargo had been delivered to their order at the time when it was delivered 
 to the wrong party; and the sum it would have fetched at that time is 
 the amount of the loss sustained by tlie non-performance of tlie defendants' 
 contract." The recent decision of this Court, in Waters v. Towers", seems 
 to be strongly in the plaintiffs' favour. The defendants there had agreed 
 to fit up the plaintiff's' mill witliin a reasonable time, but had not com- 
 pleted their contract within such time; and it was held that th;' jilaintilfs 
 were entitled to recover, by way of damages, the loss of profit upon a con- 
 tract they had entered into with third parties, and which they were 
 unable to fulfil by reason of the defendants' breach of contract. [Parke, 
 B. The defendants there must of necessity have known that the conse- 
 quence of their not completing their contract would be to stop the working 
 
 1 6 Bing. N. C. 212. = 8 Q. B. 779. ' Bull, N. P. 77. 
 
 * 1 Exch. 410. 5 2 B. & Ad. 932. » 8 Excli. 101.
 
 792 HADLEY V. BAXKNDALE. [CHAP. Vlt 
 
 of tlie mill. But how could the defendants here know that any such result 
 would follow 1] There was ample evidence that the defendants knew the 
 purpose for which this shaft was sent, and that the result of its nondelivery 
 in due time would be the stoppage of the mill; for the defendants' agent, 
 at their place of business, was told that the mill was then stopped, that 
 the shaft must be delivered immediately, and that if a special entry was 
 necessary to hasten its delivery, such an entry should be made. The de- 
 fendants must, therefore, be held to have contemplated at the time what in 
 fact did follow, as the necessary and natural result of their wrongful act. 
 They also cited Ward v. Smith^; and Parke, B., referred to Zei-y v. Lang- 
 ridge'. 
 
 Whateleii, Willes, and Phipson, in support of the rule (Feb. 2). It has 
 been contended, on the part of the plaintift's, that the damages found by 
 the jury are a matter fit for their consideration ; but still the question 
 remains, in what way ought the jury to have been directed? It has been 
 also urged, that, in awarding damages, the law gives compensation to the 
 injured individual. But it is clear that complete compensation is not to 
 be awarded ; for instance, the non-payment of a bill of exchange might 
 lead to the utter ruin of the holder, and yet such damage could not be 
 considered as necessarily resulting from the breach of contract, so as to 
 entitle the party aggrieved to recover in respect of it. Take the case of 
 the breach of a contract to supply a rick-cloth, whereby and in consequence 
 of bad weather the hay, being unprotected, is spoiled, that damage would 
 not be recoverable. Many similar cases might be added. The true prin- 
 ciple to be deduced from the authorities upon this subject is that which is 
 embodied in the maxim: "In jure non remota causa sed proxima spec- 
 tatur." Sedgwick says', "In regard to the quantum of damages, instead 
 of adhering to the term compensation, it would be far more accurate to 
 say, in the language of Domat, which we have cited above, 'that the object 
 is to discriminate between that portion of the loss which must be borne by 
 the offending party and that which must be borne by the sufferer.' The law 
 in fact aims not at the satisfaction but at a division of the loss." And the 
 learned author also cites the following passage from Broom's Legal Maxims : 
 "Every defendant," says Mr Broom, "against whom an action is brought 
 experiences some injury or inconvenience beyond what the costs will com- 
 pensate him for*"'. Again, at page 78, after referring to the case of 
 Flureav, v. ThurnhilP, he says, "Both the English and American Courts 
 have generally adhered to this denial of profits as any part of the damages 
 to be compensated, and that whether in cases of contract or of tort. So, 
 in a case of illegal capture, Mr Justice Story rejected the item of profits on 
 the voyage, and held this general language: 'Independent, however, of all 
 
 1 11 Price, 19. - 4 M. & Vf. 337. ' Page 38. 
 
 * Broom's Legal Maxims, p. 95"; Dacies v. Jfji/.(/i.«, 11 M. & W. 755. 
 ■'• 2 W. Blac. 1078. 
 
 I
 
 SECT. Ill] HADLEY V. BAXENDALE. 793 
 
 authority, I am satisfied upon principle, that an allowance of damafjes 
 upon the basis of a calculation of profits is inadmissible. The rule would 
 be in the highest degree unfavourable to tlie interests of the community. 
 The subject would he involved in utter uncertainty. Tiie calculation 
 would proceed upon contingencies, and would require a knowledge of 
 foreign markets to an exactness, in point of time and value, which would 
 sometimes present embarrassing ob.stacles; much would depend upon the 
 length of the voyage, and the season of arrival, much upon tlie vigilance 
 and activity of the master, and much upon the momentary demand. After 
 all, it would be a calculation upon conjectures, and not upon facts; such a 
 rule therefore has been rejected by Courts of law in ordinary cases, and 
 instead of deciding upon the gains or losses of parties in particular cases, a 
 uniform interest has been applied as the measure of damages for the deten- 
 tion of property.'" There is much force in that admirably constructed 
 passage. We ought to pay all due homage in this country to tlie decisions 
 of the American Courts upon this important subject, to which they appear 
 to have given much careful consideration. The damages here are too 
 remote. Several of the cases which were principally relied upon by the 
 plaintifi's are distinguishable. In Wafers v. Towers', there was a special 
 contract to do the work in a particular time, and the damage occasioned 
 by the non-completion of the contract was that to which the plaintiffs were 
 held to be entitled. In Borradaile v. Brunton' there was a direct engage- 
 ment that the cable sliould hold the anchor. So, in the case of taking 
 away a workman's tools, the natural and necessary consequence is the loss 
 of employment: Bodley v. Reytwlds^. The following cases may be referred 
 to as decisions upon the principle within which the defendants contend 
 that the present case falls: Jones v. Gooday^, Walton v. FothercjiU^, Boyce 
 V. Bayliff'e" and Archer v. Williams''. The rule, therefore, tliat the imme- 
 diate cause is to be regarded in considering the loss, is applicable here. 
 There was no special contract between these parties. A carrier has a 
 certain duty cast upon him by law, and that duty is not to be enlarged to 
 an indefinite extent in the absence of a special contract, or of fraud or 
 malice. The maxim "dolus circuitu non purgatur," does not apply. The 
 question as to how far liability may be affected by reason of malice fomi- 
 ing one of the elements to be taken into consideration, was treated of by 
 the Court of Queen's Bench in Lumley v. Gye". Here the declaration is 
 founded upon the defendants' duty as common carriers, and indeed there 
 is no pretence for saying that they entered into a special contract to bear 
 all the consequences of the non-delivery of the article in question. They 
 were merely bound to carry it safely, and to deliver it within a reasonable 
 time. The duty of the clerk, who was in attendance at the defendants' 
 office, was to enter the article, and to take the amount of the carriage ; 
 but a mere notice to him, such as was here given, could not make tlic 
 
 1 1 Exch. 401. = 8 Taunt. 53o. = 8 Q. B. 77!). * 8 M. & W. 116. 
 
 * 7 Car. A- P. 302. « 1 Camp. 58. ' 2 C. & K. 26. ' 2 E. & B. 216.
 
 794 HADLEY V. BAXENDALE. [CHAP. VII 
 
 defendants, as carriers, liable as upon a special contract. Such matters, 
 therefore, must be rejected from the consideration of the question. If 
 carriers are to be liable in such a case as this, the exercise of a sound 
 judgment would not suffice, but they ouglit to be gifted also with a spirit 
 of prophecy. "I have always understood," said Patteson, J., in Kelly v. 
 Partington^, "that the special damage must be the natural result of the 
 thing done." That sentence presents the true test. The Court of Queen's 
 Bench acted upon that rule in Foxall v. Barnett'. This therefore is a 
 question of law, and the jury ought to have been told that these damages 
 were too remote; and that, in the absence of the proof of any other 
 damage, the plaintiff's were entitled to nominal damages only: Tindall v. 
 Bell'. Siordet v. Hall* and De Vaux v. Salvador^, are instances of cases 
 where the Courts appear to liave gone into the opposite extremes — in the 
 one case of unduly favouring the carrier, in the other of holding them 
 liable for results which would appear too remote. If the defendants 
 should be held responsible for the damages awarded by tlie juiy, they 
 ■would be in a better position if they confined their business to the con- 
 veyance of gold. They cannot be responsible for results which, at the 
 time the goods are delivered for carriage, are beyond all human foresight. 
 Suppose a manufacturer were to contract with a coal merchant or mine 
 owner for the delivery of a boat load of coals, no intimation being given 
 that the coals were required for immediate use, the vendor in that case 
 would not be liable for the stoppage of the vendee's business for want of 
 the article which he had failed to deliver: for the vendor lias no knowledge 
 that the goods are not to go to the vendee's general stock. Where the 
 contracting party is shewn to be acquainted with all the consequences that 
 must of necessity follow from a breach on his part of the contract, it may 
 be reasonable to say that he takes the risk of sucli consequences. If, as 
 between vendor and vendee, this species of liability has no e.xistence, a 
 fortiori the carrier is not to be burthened with it. In cases of personal 
 injury to passengers, the damage to which tlie sufferer has been held 
 entitled is the direct and immediate consequence of the wrongful act. 
 
 Cur. adv. vult. 
 
 The judgment of the Court was now delivered by 
 
 Aldersox, B. We think that there ought to be a new trial in tliis 
 case; but, in so doing, we deem it to be expedient and necessary to state 
 explicitly the rule which tlie Judge, at the next trial, ought, in our opinion, 
 to direct the jury to be governed by wlien they estimate the damages. 
 
 It is, indeed, of the last importance that we should do this ; for, if the 
 jury are left without any definite rule to guide them, it will, in such cases 
 as these, manifestly lead to the greatest injustice. The Courts have done 
 
 1 5 B. & Ad. 651. = 2 E. & B. 928. ^ n ji_ g. -w. 232. 
 
 ■• 4 Bing. G07. = 4 A. & E. 420.
 
 SECT. Ill] HADLEY V. BAXENDALE. 795 
 
 this on several occasions; and, in Blake v. Midland Eailway Covipany\ 
 the Court granted a new trial on tliis very ground, that the I'ule liad not 
 been definitely laid down to the jury by the learned Judge at Nisi Prius. 
 
 "There are certain established rules," this Court says, in Ahkr v. 
 JCeigh/ei/^, "according to which the jury ought to find." And the Court, 
 in that case, adds: "and liere there is a clear rule, tliat the amount whicli 
 would have been received if the contract had been kept, is the measure of 
 damages if the contract is broken." 
 
 Now we think the proper rule in such a case as the present is tliis : — 
 Where two parties have made a contract which one of them has broken, 
 the damages wiiich the other party ought to receive in respect of sucli 
 breach of contract should be such as may fairly and reasonably be con- 
 sidered either arising naturally, i.e., according to the usual course of 
 things, from such breach of contract itself, or such as may reasonably be 
 supposed to have been in the contemplation of both parties, at the time 
 they made the contract, as the probable result of the Ijreach of it. Now, 
 if the special circumstances under which the contract was actually made 
 were communicated by the plaintiffs to the defendants, and thus known to 
 botli parties, the damages resulting from the breach of such a contract, 
 wliich they would reasonably contemplate, would be the amount of injury 
 which would ordinarily follow from a breach of contract under tiiese 
 special circumstances so known and communicated. But, on the other 
 hand, if these special circumstances were wholly unknown to tlie party 
 breaking the contract, he, at the most, could only be supposed to ha\e had 
 in his contemplation the amount of injury which would arise generally, and 
 in the great multitude of cases not affected by any special circumstances, 
 from such a breach of contract. For, had the special circumstances been 
 known, the parties might have specially provided for the breach of contract 
 by special terms as to the damages in that case ; and of this advantage it 
 would be very unjust to deprive them. Now the above principles are 
 those by which we think the jury ought to be guided in estimating the 
 damages arising out of any breach of contract. It is said, that otiier cases, 
 such as breaches of contract in the non-payment of money, or in the not 
 making a good title to land, are to be treated as exceptions from this, and 
 as governed by a conventional rule. But as, in such cases, both parties 
 must be supposed to be cognisant of that well-known rule, these eases may, 
 we think, be n\ore properly classed under the rule above enunciated as to 
 cases under known special circumstances, because there both parties may 
 reasonably be presumed to contemplate the estimation of the amount of 
 damages according to the conventional rule. Now, in the present case, if 
 we are to apply the principles above laid down, we find that the only cir- 
 cumstances here communicated by the plaintiffs to tjie defendants at the 
 time the contract was made, were, that the article to be carried was the 
 
 ' 21 L. .J., Q. B. 237. - 1-5 M. A- W. 117.
 
 706 HADLEY V. BAXENDALE. [CHAP. VII 
 
 broken shaft of a mill, and that the pLaintiffs were the millers of that mill. 
 But liow do tliese circumstances shew reasonably that the profits of the 
 mill must be stopped by an unreasonable delay in the delivery of the 
 broken shaft by the carrier to the third person? Suppose the plaintiffs had 
 another shaft in tlieir possession put up or putting up at the time, and 
 that they only wished to send back the broken shaft to the engineer who 
 made it; it is clear that this would be quite consistent witli the above 
 circumstances, and yet the unreasonable delay in the delivery would have 
 no effect upon the intermediate profits of the mill. Or, again, suppose that, 
 at the time of the delivery to the carrier, the macliinery of the mill Iiad 
 been in other respects defective, then, also, the same results would follow. 
 Here it is true that the shaft was actually sent back to serve as a model 
 for a new one, and that the want of a new one was the only cause of the 
 stoppage of the mill, and that the loss of profits really arose from not 
 sending down the new shaft in proper time, and that tliis arose from the 
 delay in delivering the broken one to serve as a model. But it is obvious 
 that, in the great multitude of cases of millers sending off broken shafts to 
 third persons by a carrier under ordinary circumstances, such consequences 
 would not, in all probability, have occurred; and these special circum- 
 stances were here never communicated by tlie plaintiffs to the defendants. 
 It follows, therefore, that the loss of profits here cannot reasonably be 
 considered such a consequence of the breach of contract as could have 
 been fairly and reasonably contemplated by both the parties when they 
 made this contract. For such loss would neither have flowed naturally 
 from the breach of this contract in the great multitude of such cases 
 occurring under ordinary circumstances, nor were the special circum- 
 stances, which, perliaps, would have made it a reasonable and natural 
 consequence of such breacli of contract, communicated to or known by the 
 defendants. The Judge ought, therefore, to have told the jury that, upon 
 the facts then before them, they ought not to take the loss of profits into 
 consideration at all in estimating tlie damages. There must therefore be 
 a new trial in this case. 
 
 Rale absolute.
 
 SECT. Ill] COLLEX v. WRIGHT. 
 
 797 
 
 COLLEN V. MARY WRIGHT, ROBERT JOHN WRIGHT and 
 ADAM TAYLOR the Younger, Executrix ami Executors of 
 ROBERT WRIGHT. 
 
 In the Queen's Bench, January 27, 1857. 
 
 [neported in 7 Ellis <C- Blackburn, 301.] 
 
 In the Exchequer Chamber, November 30, 1857. 
 
 [Eeported in 8 EUis d- Blackburn, 647.] 
 
 This was an action broug}it to recover damages. By consent, and 
 by order of Coleridge, J., a case, in substance as follows, was stated for 
 the opinion of the Court, under The Common Law Procedure Act, 1852, 
 sect. 46. 
 
 In the beginning of the year 1853, the plaintiff was desirous of obtain- 
 ing a lease of a farm situated in Soham Fen in the county of Cambridge, 
 belonging to William Dunn Gardner, of Fordham Abbey, in the county 
 of Cambridge, Esquire, then about to become unoccupied. Robert Wright, 
 the testator, was a land agent and valuer residing at Norwich ; and, up to 
 within a short time before the plaintiff's application to him liereinafter 
 mentioned, had had the management of the property of the said W. D. 
 Gardner in and near Soham. The plaintitt', believing the testator Wriglit 
 still to have the management of the said property, and to be the general 
 agent of Gardner for the letting of the same, including the said fann 
 in Soham Fen, applied to the testator Wright, as the supposed agent of 
 Gardner, for a lease thereof. And, after some negociation between them, 
 on 21st April, 1853, an agreement in writing was prepared by the testator 
 Wright, and signed by him as the agent of Gardner, and by the plaintifl'; 
 and which agreement is as follows. 
 
 "Terms for letting a farm on Soham Fen, containing" &,c. "Term 
 12i years from Lady Day last; rent 350/., to be paid quarterly ; landlord 
 to pay the tithe rent cliai-ge and drainage taxes ; landlord to put buildings, 
 gates and posts in repair; and tenant afterwards to keep tliem in repair, being 
 allowed rough timber ; tenant to pay for the muck and straw upon the 
 farm by valuation. All the other conditions to be the same as on the 
 lease under which John Hazlewood Burgess now holds the said farm. 
 Landlord to allow tenant 25/. of the first half year's rent. We agree to 
 the above conditions, this 21st of April 1853. Robert Wright, agent to 
 William Dunn Gardner, Esquire. John Collen." 
 
 It was further agreed, between the plaintiff and the testator Wright, 
 that an agreement, stating in detail the terms referred to in the above 
 agreement, should be prepared without delay, and be signed by the parties. 
 And, on 22nd Ajiril, 185.'i, tlie plaintiff, on the faith of the signature of
 
 798 COLLEN V. WRIGHT. [CHAP. VII 
 
 the said cagreement by tlie testator Wriglit .as above set forth, took possession 
 of the farm in question. 
 
 On 31st May, 18.5.'i, tlie plaintiff met testator Robert Wright by the 
 appointment of tlie latter. And an agreement in writing, wliich the testator 
 Wriglit had brought witli liim, was then produced by liim, and was signed 
 by him and the phiintiff, and is as follows (omitting such parts as relate 
 only to tlie mode of cultivating the farm, and the repairs to be done to 
 the premises). " Proposals for letting a farm situate in the parish of 
 Soham " <fec. (description of premises). " Lease to be for twelve and a 
 half years from the 25th day of March, 1853, at the yearly rent of 350/. 
 with usual exceptions, and witii usual clause of reentry on non-payment 
 of rent, bankruptcy, insolvency, non-performance of covenants, or on 
 parting with the possession of the premises without lessor's consent ; and 
 other usual and proper covenants. Lessee is to covenant to pay the rent 
 quarterly, to pay all parochial and other rates and taxes, except the land 
 tax, landlord's property tax, tithe rent charge and drainage taxes. And 
 it is also hereby agreed, by the said parties, that a lease and unstamped 
 copy thereof shall be forthwith prepared of these premises, agreeably to 
 these proposals, by lessor's attorney, at their joint expense, and to execute 
 the same when tendered for that purpose. Witness our hands, this 31st 
 day of May, 1853. Robert Wright, agent to William Dunn Gardner, 
 Esquire, lessor. John Collen. Witness Thomas Hustwick." 
 
 The said agreement was signed by the testator Wright in the manner 
 above set forth. 
 
 On 1st June, 1853, a valuation of the straw and muck on the farm 
 was made in accordance witli the said agreement ; and the amount thereof 
 was paid by plaintilf to Robert John Wright, the son and partner of 
 the testator Wright, and was by the said Robert John Wright paid into 
 the bank of Messrs. Eaton k Hammond, the bankers of Gardner, to the 
 credit of Gardner's account there. The plaintift" after he took possession 
 of the farm, and before September, 1853, relying upon the said agreement, 
 and believing that the testator Wright had authority to make and sign 
 the same as agent of Gardner, and that the lease would be granted in 
 accordance therewith, expended a considerable sum of money in the culti- 
 vation and improvement of the farm. 
 
 On 16th November, 1853, plaintiff was informed, as was the fact, that 
 Gardner refused to sign the said lease on the ground that the testator 
 Wright was not authorized to let the farm for 12^ years or on the terms 
 set forth in the said agreement. And plaintifi" shortly afterwards, be- 
 lieving that the testator Wright was duly authorized by Gardner to sign 
 the said agreement as his agent, and on his behalf, instituted a suit in the 
 Court of Chanceiy against Gardner for the specific performance of the 
 said contract, and for a decree that Gardner might execute and deliver to 
 plaintiff a lease according to the terms thereof ; which suit came on to be 
 heard on 29th February, 1856, before the Master of the Rolls ; and
 
 SECT. Ill] COLLEN v. WRIGHT. 799 
 
 judgment was pronounced therein that plaintiff's bill should be dismissed 
 without costs, upon the ground that the testator Wriglit had no 
 authority from Gardner to sign the said agreement as his agent, or on liis 
 behalf. 
 
 After the suit had been commenced, and Gardner had put in his 
 answers to the plaintifl's bill therein, from which it appeared tliat Gardner 
 defended the suit upon the ground that the testator Wright liad no 
 authority from him to sign the said agreements as his agent, tlie plaintitt', 
 on 7th April, 18.55, and before the hearing of the said suit, caused the 
 testator Wright to be served with a notice of which the following is a 
 copy. 
 
 " To Mr. Robert Wright, of Norwich, Land Agent. 
 
 "Whereas you, assuming to act as agent for William Dunn Gardner, 
 Esq., on the 21st day of April and the 31.st day of May, in the year of our 
 Lord, 1853, signed two several agreements with Mr. John Collen, dated 
 respectively on the above named days, for letting to the said John Collen 
 a certain farm situate in " <tc., " belonging to tlie said W. D. Gardner, for 
 the term of twelve years and a half, from Lady Day, 18.5.3, at the rent of 
 350/. ; and whereas the said W. D. Gardner has refused to execute a lease 
 of the said farm for the said term of twelve years and a half, pursuant to 
 the said agi'eement, and the said John Collen has instituted a suit in the 
 Court of Chancery against tlie said W. D. Gardner to compel a specific 
 performance of the said agreements, and which the said W. D. Gardner 
 defends upon the ground that you had no authority whatever from him, 
 the said W. D. Gardner, to sign the said agreements as his agent : Now 
 therefore take notice that the said John Collen will proceed with the said 
 suit at your risk and expense, unless, within one week from the receipt 
 hereof, you require the said John Collen, by writing under your hand, not 
 further to proceed with the same. And, further, take notice that, in the 
 event of the bill in tlie said suit being dismissed on the ground of your 
 not having had authority to sign the said agreements or to let the said 
 farm for the term of years therein mentioned, or of your requiring the 
 said John Collen not further to proceed with the said suit, the said John 
 Collen will commence an action against you to recover from you the 
 damages sustained or to be sustained by him by reason of your not having 
 had authority to sign the said agreements as agent for the said W. D. 
 Gardner, and also the costs and charges sustained and incurred by the said 
 John Collen in prosecuting the said suit. 
 
 "Dated this seventh day of April, 1855. 
 
 " Thomas Hustwick, attorney for the 
 above named John Collen." 
 
 The said Thomas Hustwick, in answer to the said notice, received the 
 following letter. 
 
 " Sir, We beg on tlie part of Mr. Wriglit, who has consulted us relative
 
 800 COLLEN V. WRIGHT. [CHAP. VII 
 
 to the notice which you served upon him on Saturday last, to apprize you, 
 on behalf of Mr. Collen, that Mr. Wright will resist any attempt on the 
 part of Mr. Collen to saddle him with the risk and expense of the suit in 
 Chancery mentioned in such notice. The suit was instituted by Mi-. 
 Collen at his own risk and expense, and for his own purposes, without Mr. 
 Wright's privity or sanction : and it has been carried on by Mr. Collen's 
 solicitor without Mr. Wright's consent or concurrence. We have also to 
 inform you that Mr. Wright will defend all actions, if any, which Mr. 
 Collen may bring against him for the purposes mentioned in the said 
 notice. 
 
 " We are. Sir, your's obediently, Adam Clemt. Taylor. 
 
 "Norwich, April 11th, 1855. 
 "Thomas Hustwick, Esq., Solr., Soham." 
 
 For the purposes of this action it is to be taken as admitted that the 
 testator AVright was not authorized by Gardner to sign the said agree- 
 ments, or either of them, as his agent or on his behalf, or to let the said 
 farm for the period or on the terms specified in the said agreements ; and 
 that neither of the said agreements was in law binding upon Gardner. 
 The testator Wright, however, bona fide believed, at the time when he 
 signed the said agreements, that he was so authorized. The plaintiff has 
 always been willing to perform the said contract on his part, and has done 
 all things which it was necessary for him to do in order to entitle him to 
 have the same performed. 
 
 The testator Wright died in January, 1856, leaving the defendants his 
 executrix and executors. And, on or about 22nd March, 1856, plaintiff 
 received from Gardner a notice to quit the said farm on 29th September 
 next, or at the expiration of the current year of his tenancy. And the 
 plaintiff has since quitted the said farm in pursuance of such notice. 
 
 It is agreed that the Court shall be at liberty to draw such inferences 
 from the facts above stated as a jury might have drawn ; and that, in the 
 event of the opinion of the Court upon the first of the questions raised 
 being in the plaintiff's favour, the amount of the damages to be received 
 by him shall be ascertained, in accordance with the judgment of the Court 
 upon the second question, by an arbitrator, to be named by the parties, or, 
 in default of their agreeing, to be named by one of the Judges of the 
 Court. 
 
 The questions for the opinion of the Court are : 
 
 1st. Whether the plaintiff is entitled to maintain an action against 
 the defendants, as executrix and executors of the said Robert Wright, to 
 recover damages. 
 
 2nd. Whether, if so, the wliole of the damages sustained by the 
 plaintifl', including his costs of the said suit in Chancery, can be recovered, 
 or, if some of such damages and costs only can be recovered, which of 
 them, and to what extent, without I'egard, however, to the exact amount.
 
 SECT. Ill] COLLEN V. WRIGHT. iSOl 
 
 If the Court shall be of opinion upon the first question in the 
 aiEnnative, judgment is to be entered up for the plaintiff for sueh amount 
 of damages as shall be awarded by the arbitrator in accordance witli the 
 decision of the Court upon the second question, with costs of suit. If tlie 
 Court shall be of opinion upon the first question in the negative, judgment 
 of nolle prosequi, with costs of defence, shall be entered up for the de- 
 fendants. 
 
 0' Malhy, for tlie plaintiff. The testator was lialjle, altliough he acted 
 with perfect bona fides ; the facts were within his knowledge. There is 
 clearly no remedy against the alleged principal : and it is reasonable that 
 the party making the mistake should answer for the consequences. The 
 agent cannot indeed be treated exactly as principal in the contract it.self ; 
 Lewis V. Nicholson^; any more than a man undertaking that J. S. sliould 
 marry A. would be liable to an action for not himself marrying A. if J. S. 
 had not authorized the undertaking. But in the case cited Lord Campbell, 
 C.J. expressed his opinion that the agents were "personally contracting tliat 
 they had authority to make a contract binding the assignees " (the alleged 
 principals). And Wightman, J., said : " I am strongly inclined to think 
 that there is in such cases an implied undertaking by the agent tliat he 
 has tiie authority to bind his principal whicli he assumes to have. Cer- 
 tainly, if there is fraud, he would be answerable personally in an action on 
 the case ; if there is such an implied undertaking, he is liable personally 
 in an action of assumpsit whether there be fraud or not." [Lord 
 Campbell, C. J. And, in addition to this, you are perhaps entitled to 
 insist on the principle that, the representation of tlie testator having been 
 acted on, he was not entitled to deny its truth.] In Raudell v. Trimen' 
 the declaration alleged that defendant falsely and fraudulently repre- 
 sented that he was authorized to make a contract for A., upon wliich 
 representation plaintiffs acted, and furnished materials ; and A. refused 
 to pay ; and plaintiffs, suing A., failed and had to pay A.'s costs : the 
 Judge told the jury that, if the defendant made the representation and it 
 was untrue, the plaintiffs were entitled to recover from him the price of tlie 
 materials and the costs of the action ; and the Court of Common Pleas 
 discharged a rule for a new trial, holding that the defendant was liable 
 though he believed the representation to be true. Then as to the damages. 
 The case last cited is deci.sive in favour of the plaintiff', so far as regards 
 the costs of the Chancery suit. [Ckompton, J. It seems to be a question 
 for the jury, whether it was reasonable for the plaintiff to institute the 
 suit.] The Court here has the functions of a jury. The case is not liko 
 Maiden v. Fi/son", where the Court of Chancery gave no costs to the 
 plaintiff in a suit where the bill was dismissed on the ground that tiie 
 defendant was unable to comply with tlie contract, of which plaintiff 
 claimed the specific performance, the plaintifi' himself liaving insisted on 
 tlie inability. As to the loss of the bargain : in A'obiiison v. Hartnan' it 
 1 18 Q. B. .503. - IS Com. B. 786. - 11 Q. B. •2'.)2. • 1 Exch. 850. 
 
 F. 51
 
 802 COLLEN V. WRIGHT. [CHAP. VII 
 
 was held that a party, who engaged to grant a valid lease, having full 
 knowledge that he could not do so, was liable to answer for the value of 
 the bargain. There Parke, B., said : " the rule of the common law is, 
 that where a party sustains a loss by reason of a breach of contract, he is, 
 so far as money can do it, to be placed in the same situation, with respect 
 to damages, as if the contract had been performed." The sale of real 
 estate is indeed, as tliere pointed out, an exception to this rule, because the 
 contract for the sale is merely conditional on the vendor having a good 
 title. There can be no question as to the plaintifiF's right to be reimbursed 
 the money which he laid out in consequence of his being misled by the 
 testator. 
 
 IJorace Lloijd, contra. R'ludell v. Trimen' does not really militate 
 against the defendants. It was common to bring an action for a false 
 representation fraudulently made. Then it was held that the action also lay 
 where there was no bad motive. But, from PolhUl v. Walter' downwards, 
 including Collins v. Evans^ and Orinrod v. Iluth*, it has been held that, 
 where the party making the representation bona fide and reasonably 
 believed in its truth, no action lies. [Crompton, J. I was counsel for the 
 defendants in Ormrod v. Iluth*, and was in much dread that the jury 
 might be asked whether the defendant had actually promised, which I 
 believed the jury would have found.] Can tlie testator here be said to 
 have contracted for any fact but that of his own belief 1 [Crompton, J. 
 He would liardly have made a representation of his mere belief to the 
 plaintifl'.] That is as natural an inference, from his conduct in acting as 
 agent, as an inference of his actually undertaking that he was so. Then, 
 as to the damages, assuming the liability. [The Court suggested that the 
 plaintiff should abandon the claim of damages in respect of the loss of the 
 bargain, and that the defendants should admit, on the assumption of their 
 liability, the claim of damages in respect of the money laid out : the 
 counsel assented to this.] The question then is as to the expenses of the 
 Chancery suit. [Crompton, J. Is not that a question for us, as jury- 
 men, whether those expenses were a natural consequence of the misrepre- 
 sentation 1] 
 
 Lord Campbell, C. J. There can be no doubt tliat the testator 
 asserted that he had authority to let the property on the terms to which 
 he agreed. That is a promise and warranty. Might he not then have 
 been sued on the warranty, although he believed it to be true 1 If he in- 
 duced the plaiutifT to act upon it, he was bound. It is broken, since the 
 testator had not authority. A lawful promise having been broken, why 
 should there not be an action upon it, although there has been no bad 
 faith ? I should clearly be of opinion that such action lay, even without 
 the authority of Rundell v. Trimen'. But tliat case is an express authority. 
 
 ' 18 Com. B. 78G. = 3 B. & Ad. 114. 
 
 ■' .S Q. B. 820, in Exch. Ch., reversing the judgment of Q. B. iu Evans v. Collins, 
 5 Q. B. 80i. 4 14 M. & w. 651.
 
 SKC'T. Ill] OOI,I,EN V. WRIGHT. Sli:? 
 
 Tliere the question which the Court liad to decide was, Whether tlie action 
 was maintainable in the absence of fraud 1 I always thousjlit tlic notion of 
 suing tlie agent as principal absurd : the illustration, which Mi-. O'Malley 
 suggested, of a promise that an alleged principal sliould marry shews this. 
 But, if a man describes himself as agent, when he is not so, he must pay 
 for the damage occasioned by the breach of warranty. Whether the 
 plaintiff could reco\-er against the testator all that he might have recovered 
 against the principal had there been the alleged authority, I do not say. 
 Mr. O'Malley having abandoned one claim and Mr. Lloyd having admitted 
 anotlier, we are to consider whether tiie plaintiff' is entitled to recover in 
 respect of the expenses of the Chancery suit. I tliink he is. He acted as a 
 reasonable man would who gave faith to the representation that a con- 
 tract had been made by the alleged pi-incipal ; he required that that con- 
 tract should be speciticnlly performed. Tlie case cannot differ from tiiat of 
 a sale of goods by a party alleging himself to be broker. The pui'- 
 chaser says that the alleged broker's contract is broken, because he had 
 no authority to sell. If, before the action was brought, the alleged broker 
 had explained the mistake, the purchaser could not have recovered 
 damages incurred by subsequently prosecuting the action. But, if the 
 assertion was made and never retracted, I could not blame him for Ijring- 
 ing the action. If the purchaser could not know that the alleged broker had 
 no authority to make the contract, the loss arising from the action seems 
 to me naturally to result from the allegation. I cannot distinguish the 
 case of such an action from tlie case of a bill for specific performance filed 
 in the belief that the contract was authorized on tlie part of tjio jiUcgod 
 principal. 
 
 (Coleridge, J., was absent.) 
 
 WiGHTMAN, J. If a man makes a contract as agent he does promise 
 that he is what he represents himself to be, and he must answer for any 
 damage which directly results from confidence being given to the repre- 
 sentation. There can te no doubt that in the present case the testa- 
 tor did represent himself to be agent for William Dunn Gardner : he 
 thought he had Gardner's authority for making the lease ; but he had not. 
 He became answei-able for the consequences. As to the amount of tiie 
 damages: no doubt, if the actio)i lies at all, the testator would be linblc 
 to the expenses which the plaintiff' incurred in the management of the 
 farm. I own tliat some question may be made as to tlie Chancery suit. It 
 may be a question whether the plaintiff ought not to have given notice 
 that he was going to commence the suit, and that this would he. at the 
 risk of the expense falling upon the property of the testator. Hut I 
 assume that the testator did persist in asserting his authority to the last ; 
 and then it was reasonable that the plaintiff; believing the assertion, should 
 claim a specific performance. 
 
 Cro.mpton, J. I am of the same opinion. Tiic first question is, Wiietlicr 
 
 .51 —-2
 
 804 COLLEN V. WRIGHT. [CHAP. VII 
 
 an action lies on the contract of a person representing himself to have 
 authority, there being good consideration for such contract. When the 
 contract is written, the question is for the Court; when it is not written, 
 the question is for the jury. Here we have a written document in which 
 the testator states himself to be agent. It never was doubted that an 
 action would lie on such contract. I agree that an action for deceit 
 would not lie, since there is no mala fides : all the cases agree as to that. 
 But there clearly was a contract on which the action would lie : and this 
 reduces the question to one of amount of damages. As to the money laid 
 out on the farm, it is conceded that tliis is recoverable. As to the loss of the 
 bargain, the plaintiff's counsel did not insist upon damage for that, and 
 wisely ; it is too vague a claim. I have most doubt as to the Chancery 
 suit. The plaintiff, supposing the bargain duly made, would have a right 
 to bring an action for its non-performance, or to institute a suit for 
 specific performance : and the damage resulting from such proceedings 
 seems not too remote. Yet circumstances vary so much that it may often 
 be rash to commence proceedings without warning to the party who is said 
 to be ultimately liable to the expense in case of failure. Still I do not 
 think it can be said that tlie complaining party is always bound to go, in 
 the first instance, to the alleged agent to inquire : nor would this have 
 been of any use in the present case, where the alleged agent did not know 
 that he had not authority. The facts that we have before us do not 
 appear to me to shew want of caution : so I should say as a juryman ; and 
 I should give damages accordingly. 
 
 Judgment for the plaintiff, for the damages incurred in 
 
 the cidtivntion of the farm and the prosecution of 
 
 the Chancer I) suit^. 
 
 An appeal from the above decision was brought by the defendants. 
 Fhipson, argued for the appellants, defendants below. 
 0' Mallet/ for the respondent, plaintiff' below. 
 
 Cur. adv. vult. 
 
 There being a difference of opinion on the Bench, separate judgments 
 were delivered. 
 
 WiLLES, J., delivered the following judgment, in which Pollock, C. B., 
 Williams, J., and Bramwell, Watson and Channell, Bs., concurred. 
 
 It appears to me that the judgment of the Court of Queen's Bench 
 ought in all respects to be affirmed. I am of opinion that a person, who 
 induces another to contract with him as the agent of a third party by an 
 unqualified assertion of his being authorized to act as such agent, is 
 answerable to the person who so contracts for any damages whicli he may 
 sustain by reason of the assertion of authority being untrue. This is not 
 
 1 See Mr. Smith's note, in 2 Lea. Ca. 297 (4th ed.), to Thompson v. Darenport 
 (9 B. & C. 78).
 
 SECT. Ill] LILLEY V. DOUBLEDAY. 805 
 
 the case of a bare misstatement by a person not bound liy any duty 
 to gi\-e information. The fact that the professed agent lioncstly thinks 
 that lie has authority afiects the moral character of iiis act ; but liis moral 
 innocence, so far as tlie person whom he lias induced to contract is con- 
 cerned, in no way aids such person or alleviates the inconvenience and 
 damage which he sustains. The obligation arising in such a case is well 
 expressed by saying that a person, professing to contract as agent for 
 anotlier, impliedly, if not expressly, undertakes to or promises the person 
 who enters into such contract, upon the faith of the professed agent being 
 duly authorized, that the authority which he professes to have does in 
 point of fact exist. The fact of entering into the transaction with the 
 professed agent, as such, is good consideration for the promise. Indeed 
 the contract would be binding upon the person dealing with the professed 
 agent if the alleged principal were to ratify the act of the latter. This 
 was, in efi'ect, the \'iew taken by the Court of Queen's Bench, and to 
 which 1 adhere. With respect to the amount of damages, I retain tlie 
 opinion thrown out in the course of the argument, that all the expenses 
 sought to be recovered were occasioned by the assertion of authority made 
 at the time of the contract being continued and persisted in by the de- 
 fendant's testator and bona fide acted upon by the plaintif}'. That 
 assertion was never withdrawn, not even in the letter of 11th Ajiril, 
 1855, in answer to the plaintiff's notice to the defendant's testator, 
 long after the proceedings in Chancery had commenced and whilst they 
 were in full progress. I am therefore of opinion that the judgment of the 
 Queen's Bench was right, and that it ought to be affirmed. 
 
 Judgment affirmed^. 
 
 LILLEY V. DOUBLEDAY. 
 In the High Court of Justice, June 28, 1881. 
 
 \Repm-teil in Law Reports, 7 Quaen's Bench Division, 510.] 
 
 Motion to enter judgment for the plaintiff pursuant to the findings of 
 the jury. A rule for a new trial, on the ground that the findings were 
 wrong, was disposed of in the course of the argument. The action was to 
 recover the value of certain drapery goods warehoused by the defendant 
 for the plaintiflf, which were destroyed by tire. The contract was that the 
 goods should be deposited at the defendant's repository at Kingsland Road, 
 but a portion of them were deposited by the defendant elsewhere, and a 
 
 ' The judgmeut of Cockburn, C. J., who differed from the majority of the Court, ia 
 omitted. Ed.
 
 806 LILLEY v. DOUBLEDAY. [CHAP. VII 
 
 fire occurring they were destroyed. Tlie plaintiff had insured the goods, 
 giving Kingsland Road as the place where they were deposited, and in 
 consequence lost the benefit of the insurance. 
 
 Murphy, Q.C., and C. E. Jones, for the plaintiff, contended that there 
 had been a conversion of the goods by the defendant, which entitled the 
 plaintiff to recover their value, and further that, the contract being to 
 keep the goods at Kingsland Road, and that contract having been broken, 
 the defendant took the risk of the loss of the goods on him, and was liable 
 for tlieir value : Davis v. Garrett\ 
 
 AJiUson, Q.C., and J. R. Bunlop Hill, for the defendant, contended 
 that there had been no conversion, and that there having been no intention 
 to convert the goods to the defendant's use and nothing to change their 
 quality, the defendant would only be liable in case he did not use 
 reasonable care as a warehouseman : Fouldes v. Willouglihy" ; that the 
 damages claimed would be too remote within the rule of Hadley v. 
 Baxendale^, as not being in the contemplation of the parties, and that 
 llobbs V. London and South Western Ry. Co.* was an authority in favour 
 of tlie defendant. They also referred to Heald v. Carey^; Glynn v. East 
 and West India Dock Co."; British Columbia Saiv Mill Co. v. Netlleship^. 
 
 Grove, J. I think the plaintiff is entitled to judgment. It seems to 
 me impossible to get over this point, that by the finding of the jury there 
 has been a breach of contract. The defendant was entrusted with the 
 goods for a particular purpose and to keep them in a particular place. He 
 took them to another, and must be responsilile for what took place there. 
 The only exception I see to this general rule is where the destruction of 
 the goods must take place as inevitably at one place as at the other. If a 
 bailee elects to deal with the property entrusted to him in a way not 
 authorized by the bailor, he takes upon himself tlie risks of so doing, 
 except where the risk is independent of his acts and inherent in the 
 property itself. That proposition is fully supported by the case of Davis 
 V. Garrett'', which contains very little that is not applicable to this case. 
 It was argued that that case was decided on the ground that the 
 defendant was a common carrier, but that is not the ground of the 
 judgment of Tindal, C. J., who decided that as the loss had happened while 
 the wrongful act of the defendant was in operation and was attributable 
 to liis wrongful act, he could not set up as an answer to the action the 
 bare possibility of the loss if his wrongful act had never been done, and he 
 illustrated the case by saying that a defendant who had by mistake 
 forwarded a parcel by the wrong conveyance, if a loss had thereby ensued, 
 would undoubtedly be liable. I do not give any opinion whether what 
 was done here amounted to a conversion, but I base my judgment on the 
 
 ' 6 Bing. 716. = 8 M. & W. 510. ' 9 Ex. 341. 
 
 * Law Rep. 10 Q. Bl. 111. 5 n c. B. 977. 
 
 « 6 Q. B. D. 475. 7 Law Eep. 3 C. P. 499.
 
 SECT. Ill] LILLEY V. DOUBLEDAY. 807 
 
 foct tliat the defendant broke liis contract, by dealing with the subject- 
 matter in a manner different from that in which lie contracted to deal 
 with it. The only case that would have made me hesitate is Ilobbs v. 
 London and South Western Ry. Co. ', and tiiat we are told has some doubt 
 thrown on it in a recent case in the Court of AppeaP, at all events the 
 doubt induced by the former case is not strong enough to make me alter 
 the opinion I have expressed on this one. There will, therefore, be judg- 
 ment for the plaintiff. 
 
 LiNDLEY, J. I am of the same opinion. The plaintiff gave his goods to 
 the defendant to be warehoused at a particular place, the defendant 
 warehoused them elsewhere, where, without any particular negligence on 
 his part, they were destroyed. The consequence is that the plaintiff has a 
 cause of action and is entitled to damages. The question is, what 
 damages'! Hadley v. Baxeiulale^ is wide of the mark, because the question 
 here is whether the defendant was responsible for the goods, and if so the 
 damages must be their value. Then, it is further said that the defendant 
 was responsible only for want of reasonable care, but is that so when he 
 has departed from his authority in dealing with the goods 1 I give no 
 opinion whether there is a conversion of the goods ; the question is, what 
 answer has the defendant to the plaintiff who asks for them back. Can he 
 say he will neither return the goods nor pay their value. I think he 
 cannot. The reasoning in Davis v. Garrett^ is applicable to this case, and 
 Burrows v. March Gas and Coke Co.' shews that the damage is not too 
 remote. 
 
 Stephen, J., concurred. 
 
 Judgment /or the plaintiff. 
 
 1 Law Eep. 10 Q. B. 111. = M'Ma)wii v. Fiehl, 7 Q. B. D. p. 5'Jl. 3 9 Exch. 341. 
 * 6 Bing. 71G. "^ Law Eep. 5 Ex. 67; on appeal, Law Rep. 7 Ex. UG.
 
 CHAPTER VIII. 
 
 SPECIFIC PERFORMANCE. 
 
 BUXTON V. LISTER AND COOPER. 
 
 In Chaxcery, July 15, 1746. 
 
 [Reported in 3 Atkyns, 383.] 
 
 The defendants entered into an agreement for the purchase of several 
 timber trees, marked and growing at the time it was reduced into writing : 
 and on the 1st of Novemher, 1744, the followang memorandum was signed 
 by the parties : 
 
 " Matthew Lister and John Cooper have agreed with Joseph Buxton 
 for the purchase of all those several large parcels of wood, consisting of 
 oaks, ashes, elms, and asps, which are numbered, figured, and ciphered, 
 standing and being witliin the township of Kirkliy, for the sum of 3050^. 
 to be paid at six several payments, every Lady-day for the six following 
 years ; and Lister and Cooper to have eight years for disposing of the 
 same ; and that articles of agreement shall be drawn and perfected as soon 
 as conveniently can be, with all the usual covenants tlicrein to be inserted 
 concerning the same." 
 
 There were two parts of the agreement. 
 
 The plaintifi' signed one, and the defendants the other ; one was left in 
 the custody of the plaintiff, and the other in the custody of the defendants. 
 The bill was bi'ouglit by the vendor for the specitic performance of the 
 agreement. 
 
 Lord Chancellor, upon the opening, said, he did not know any instance 
 of a bill of this nature, where it is a mere chattel only, and nothing that 
 affects the realty. 
 
 That a bill might as well be brought for compelling the performance of 
 an agreement for the sale of a horse, or for the sale of stock, or any goods 
 or merchandise. 
 
 Sir Joseph Jekyl did, in Ciid v. Rutter, 1 P. Wms. 570 decree a specific 
 performance in the case of a chattel, but Lord Macclesfield reversed it, and 
 it has been the rule of the court ever since, not to retain such a bill.
 
 CHAP. VIIl] BUXTON V. LISTER. SOD 
 
 The proper remedy is an action at law, where you may recover damages 
 for the non-performance of tlie agreement. 
 
 The defendants' counsel, to sliew tlie impropriety of sucli a Ijill, and 
 that the parties ought to be left to law, cited Rolle's Reports 493, and 
 Latch's 172. 
 
 Upon liearing what the plaintiff's counsel could allege, in order to take 
 this case out of the general rule of the Court, Lord Chancellor delivered 
 his opinion as follows : 
 
 The general question is, as to the decree for specific performance, and 
 this divides itself into two subordinate ones. 
 
 First, Whether the plaintiff is entitled to seek his remedy in a Court of 
 Equity for a specific performance. 
 
 Secondly, whether, as to the merits of his case, he is entitled to such a 
 decree. 
 
 As to the first, I am of opinion, that this is sucli an agreement, though 
 for a personal chattel, that the plaintiff may come here to have a specific 
 performance. 
 
 To be sure, in general this Court will not entertain a bill for a specific 
 perfomiance of contracts of stock, corn, hops, ttc' for as those are contracts 
 which relate to merchandise, that vary according to different times and 
 circumstances, if a Court of Equity should admit such bills, it might drive 
 on parties to the execution of a contract, to the ruin of one side, when 
 upon an action, that party might not have paid, perhaps, above a shilling 
 damage. 
 
 Therefore the Court have always governed themselves in this manner, 
 and leave it to law, where the remedy is so much more expeditious. 
 
 As to the cases of contracts for purchase of lands, or things that relate 
 to realties, those are of a permanent nature, and if a person agrees to 
 purchase them, it is on a particular liking to the land, and is quite a dif- 
 ferent thing from matters in the way of trade. 
 
 But, however, notwithstanding this general distinction between personal 
 contracts, and for goods, and contracts for lands, yet there are indeed 
 some cases where persons may come into this Court tliough merely personal, 
 and the plaintiff's counsel have cited a case in point, Taylor v. Neville'. 
 
 That was for a performance of articles for sale of eight hundred tons of 
 iron, to be paid for in a certain number of years, and by instalments, and 
 a specific performance was decreed. 
 
 Such sort of contracts as these, differ from those that are immediately 
 to be executed. 
 
 There are several circumstances which may concur. 
 
 A man may contract for the purchase of a great quantity of timber, iis 
 a ship carpenter, by reason of the vicinity of tlie timber, and tiiis on tlie 
 part of the buyer. 
 
 1 So Cud V. liutter, 1 P. W. .570; Cupjiur v. Harris, Bunb. 1:5.5. 
 
 « Vide Colt V. Netterville, 2 V. W. 304; Thompson v. Ilarcourt, 2 Bio. Pur. Ca. -115.
 
 810 BUXTON V. LISTER. [CHAP. VIII 
 
 On the part of the seller, suppose a man wants to clear his land, in 
 order to turn it to a particular sort of husbandry, there nothing can answer 
 the justice of the case, but the performance of tlie contract in specie. 
 
 In the case of John Duke of Biichimjliamshire v. Ward, a bill was brought 
 for a specific performance of a lease relating to Alum Works, and the trade 
 thereof, which would be greatly damaged, if the covenant was not per- 
 formed on the part of Ward. 
 
 The covenants lay there in damages, and yet the court considered if 
 they did not make such a decree, an action afterwards would not answer 
 the justice of the case, and therefore decreed a specific performance. 
 
 This is something of the like kind ; the memorandum appears not to be 
 the final contract, but is to be made complete by subsequent articles. 
 
 I am doubtful, whether at law the plaintifl' would not have been told 
 this was an incomplete agreement. 
 
 Suppose two partners should enter into an agreement by such a memo- 
 randum as is in the present case, to carry on a trade together, and that it 
 should be specified in the memorandum, that articles should be drawn 
 pursuant to it, and before they are drawn, one of the parties flies oflf, 
 I should be of opinion, upon a bill brought by the other in this Court, for a 
 specific performance, that notwithstanding it is in relation to a chattel 
 interest, yet a specific performance ought to be decreed. 
 
 On the circumstances of the present case, such a bill ought to be enter- 
 tained, but at the same time, I will add that courts ought to weigh with 
 great nicety cases of this kind, before they determine the bill proper, where 
 it is a mere personal chattel. 
 
 Secondly, If the plaintiff on the merits of the case is entitled to a 
 decree. 
 
 Nothing is more established in this Court, than that every agreement 
 of this kind ought to be certain, fair, and just in all its parts. 
 
 If any of those ingredients are wanting in the case, this Court will not 
 decree a specific performance. 
 
 For it is in the discretion of the Court, whether they will decree a 
 specific performance, because otherwise, as I said before, a decree might 
 be made which would tend to the ruin of one party. 
 
 One objection made by the defendants' counsel to the decreeing a 
 specific performance was misrepresentation. 
 
 This depends upon the evidence of John Cooper, son of the defendant 
 Cooper, that his father ofFered the plaintiflT 2800^. but he insisted on 3500^. 
 and said Fenwick and Clark, two timber merchants, had valued it at so 
 much, and that this was true on his honour, and when he said a thing on 
 his honour, the defendant ought to believe it. 
 
 Afterwards the defendants agreed to give 3050^. for the wood, on the 
 opinion they had of Fenwick and Clark's judgment. 
 
 If this be true, it is an ingi-edient which will induce a Court of Equity 
 not to decree a specific performance, for it comes out now that Fenwick
 
 CHAP. Vm] ADDERLEY V. DIXON. Ml 
 
 and Clark did not set any greater valuation tlian 2500^. upon the timber, 
 and this misrepresentation was the ground which induced the defendants 
 to come into the agreement. 
 
 This fact is very particularly put in issue, and yet the plaintift', wlio 
 examined Okey and his wife that were present when tliis discourse passed, 
 do not ask them as to tliis fact. 
 
 There is nothing inconsistent therefore in their deposition from Cooper's. 
 
 The next point is, as to the preparation of the articles. 
 
 Whether there are defects or omissions which ought to have been in- 
 serted. 
 
 It has been insisted by the defendants, that tliey would have had the 
 usual clause inserted in the articles relating to the buyer's liorses being 
 permitted to graze on the land, where the timber stands, and likewise 
 would have had a covenant, for indemnifying the defendants in falling the 
 timber, because, as it grows in hedge-rows, one side belongs to a stranger, 
 but the plaintiff" refused it. 
 
 Therefore, if it is most natural to suppose it would fall on that side, 
 the defendants ouglit to have been indemnitied from actions which might 
 have been brought for a trespass on the stranger's land. 
 
 But then the counsel differ as to the consequences. 
 
 The plaintiff insists, the articles ought to be sent to the Master, to see 
 if there are usual covenants. 
 
 In case of land the plaintiff's counsel would liave been right. 
 
 But a personal contract is quite different, because, when the defendants 
 saw that the plaintiff would not insert these covenants, they had no occa- 
 sion to wait the event of a Chancery suit, but might go to another market 
 to supply themselves. 
 
 Upon the whole, I am of opinion the bill must be dismissed, and if it 
 was to be dismissed upon tlie misrepresentation it ought to be with costs : 
 but what I would propose is, that if the plaintiff will consent to give up 
 the agreement, I will dismiss it without costs ; but if he will bring an 
 action, then with costs. 
 
 The plaintiff waiving the agreement, his Lordsliip decreed accordingly. 
 
 ADDERLEY v. DIXON. 
 
 In Chancery, February 23, 1824. 
 
 [Reported in 1 Simotis iS: Stuart, 607.] 
 
 The plaintiffs having purchased and taken assignments of certain 
 debts which had been proved under two commissions of bankrupt, agrcetl 
 to sell to the defendant for 2»-. 6(/. in the pound.
 
 812 ADDERLEY V. DIXON. [cHAP. VIII 
 
 The defendant's solicitor, accordingly, gave notice of the sale to the 
 assignees, and prepared an assignment of the debts, and the plaintiffs, 
 notwithstanding the purchase money had not been paid, executed it, and 
 signed the receipt for the consideration money, and left it in the 
 solicitor's hands. The bill was filed to compel the defendant specifically 
 to perform the agreement, and to pay the purchase money to the 
 plaintifts. 
 
 The defendant, by his answer, submitted that the matter of the 
 agreement was not the proper subject of a. bill in equity for a specific 
 performance ; and claimed the same benefit as if he had demurred to the 
 bill. 
 
 Mr. Sugden and Mr Garralt for the plaintiffs : — 
 
 It is iiot stated in the bill whether this agreement was in writing or 
 not. But that is not material, as it has been decided that an agreement 
 for the sale of a debt is not witliin the Statute of Frauds. Ansley v. 
 Marden^. 
 
 With respect to the question, whether this Court has jurisdiction to 
 decree a specific performance of an agreement for the sale of a debt, the 
 case of Wright v. Bell" contains the judgment of the late Chief Baron 
 upon the very point. That case was discussed before your Honour in 
 Witliy V. Cottle^, and your Honour there decreed a specific performance of 
 an agreement for the purchase of an annuity payable out of the dividends 
 of stock. It is settled that a person who wants a specific chattel may 
 come into this Court to have it delivered to him, as in the case of the 
 Pusey Horn* and the tobacco-box'. If then the purchaser in this case 
 might have filed a bill for a specific performance of the agreement, the 
 vendors must have the same privilege ; for the remedy must be mutual. 
 The reason why the Court refuses to decree a specific performance of a 
 contract for a transfer of stock, is that one sum of stock is the same as 
 another. Here the plaintiffs cannot get what they have contracted for, 
 except by the aid of this Court. They want not the money of any 
 particular person, but the sum for wliich they have agreed to sell these 
 debts. If they went to law they might get more or less ; but they have 
 a riglit to have the very sum of money. Independently' of this, the 
 plaintiffs are entitled to the benefit of the defendant's oath, and to call 
 upon him to say whether there was or was not such a contract as is stated 
 in the bill, and also to have a lien on the subject which they have 
 contracted to sell. Lewis v. Lord Lechmere^. We submit, therefore, 
 that, both upon principle and authority, the plaintiffs are entitled to the 
 relief prayed by this bill. 
 
 Mr. Uart and Mr. Treslove for the defendant : — 
 
 As the assignment of these debts has been executed and actually 
 
 1 1 New Rep. 124. '- Dan. 95. 3 1 S. cSr S. 174. 
 
 * Pusey V. Pusey, 1 Vern. 273. » Fells v. Read, 3 Ves. 70. See also Duke of 
 
 Somerset v. Cookson, 3 P. W. 390. " 10 Mod. 503, 506.
 
 CHAP. VITl] ADDERLEY V. DIXON. 813 
 
 delivered to the defendant's solicitor, nothing remains to be done but the 
 payment of the money. If the Court, therefore, were to make a decree in 
 this case it would, in effect, be nothing more than a verdict in an action of 
 assump.sit for the amount of the purcliase money. A Court of Equity 
 lends its aid to the execution of executory agreements only. Here the 
 plaintiffs' demand is a mere legal debt. 
 
 It is not clear that in the converse of this case relief would ha\"e been 
 given in this Court. Suppose the defendant had filed a bill for a specific 
 performance of this agreement, would it not have been said that this 
 Court gives relief only where the specific thing is wanted, and damages are 
 not a sufficient compensation? Buxton v. Lister^, Dorison v. fVi'Mrook'. 
 
 The case of Wright v. Bell differs from this case ; for there the 
 defendant waived all objections except as to the title, and the Lord Chief 
 Baron notices that circumstance in his judgment. That is not the case 
 here ; for this defendant insists upon the want of jurisdiction in this 
 Court to deci-ee a specific performance in the present case. 
 
 Mr. Sugden in reply said, that, whether the Court could or could not 
 decree a specific performance of the agreement must depend upon the 
 nature of it, and not upon the proceedings which had been taken towards 
 its completion ; and that, if the plaintili's were entitled to that relief upon 
 general principles, it would be hard to deprive them of it because they had 
 performed their part of- the contract. 
 
 The Vice-Chancellor : — 
 
 Courts of Equity decree the specific performance of contracts, not upon 
 any distinction between realty and personalty, but because damages at 
 law may not, in the particular case, afford a complete remedy. Tims a 
 Court of Equity decrees performance of a contract for land, not because of 
 the real nature of the land, but because damages at law, which must be 
 calculated upon the general money-value of land, may not be a complete 
 remedy to the purchaser, to whom the land may have a peculiar and 
 special value. So a Court of Equity will not, generally, decree performance 
 of a contract for the sale of stock or goods, not because of their personal 
 nature, but because damages at law, calculated upon the market-price of 
 the stock or goods, are as complete a remedy to the purchaser as the 
 delivery of the stock or goods contracted for; inasmuch as, with the 
 damages, he may purchase the same quantity of the like stock or goods. 
 
 In Taylor v. Neville, cited in Buxton v. Listen; specific perfoi'iiiance 
 was decreed of a contract for sale of 800 tons of iron, to be delivered and 
 paid for in a certain number of years and by instalments ; and the reason 
 given by Lord Hardwicke is that such sort of contracts differ from those 
 that are immediately to be executed, and they do dill'er in this respect, 
 that the profit upon the contract, being to depend upon future events, 
 cannot be correctly estimated in damages where the calculation must 
 ' 3 Atk. 383. - 5 Vin. Ab. 548, pi. 22.
 
 814 HOLliOYl) V. MARSHALL. [f'HAP. VIH 
 
 proceed upon conjecture. In such a case, to compel a party to accept 
 damages for the non-performance of his contract, is to compel him to sell 
 the actual profit which may arise from it, at a conjectural price. In Ball 
 V. Coggs', specific performance was decreed in the House of Lords of a 
 conti'act to pay the plaintiff a certain annual sum for his life, and also a 
 certain other sum for every hundred-weight of brass-wire manufactured by 
 the defendant during the life of the plaintiff. The same principle is to be 
 applied to this case. Damages might be no complete remedy, being to be 
 calculated merely by conjecture ; and to compel the plaintiff in such a case 
 to take damages would be to compel him to sell the annual provision 
 during his life for which he had contracted, at a conjectural price. In 
 Biixfon V. Lister, Lord Hardwicke puts the case of a ship-carpenter 
 purchasing timber which was peculiarly convenient to him by reason of its 
 vicinity; and also the case of an owner of land covered with timber 
 contracting to sell his timber in order to clear his land ; and assumes that 
 as, in both those cases, damages would not, by reason of the special 
 circumstances, be a complete remedy, equity would decree specific per- 
 formance. 
 
 The present case being a contract for the sale of the uncertain 
 dividends which may become payable from the estates of the two bankrupts, 
 it appears to me that, upon the principle established by the cases of Ball v. 
 Coygs, and Taylor v. Neville, a Court of Equity will decree specific 
 performance, because damages at law cannot accurately represent the 
 value of the future dividends ; and to compel this purchaser to take such 
 damages would be to compel him to sell these dividends at a conjectural 
 price. 
 
 It is true that the present bill is not filed by the purchaser, but by the 
 vendor, who seeks, not the uncertain dividends, but the certain sum to be 
 paid for them. It has, however, been settled, by repeated decision, that 
 the remedy in equity must be mutual ; and that, where a bill will lie for 
 the purchaser, it will also lie for the vendor. 
 
 A. P. HOLROYD and Others .... Appellants. 
 
 J. G. MARSHALL and Others .... Respondents. 
 
 In the House op Lords, June 18, 1861. 
 
 (Reported in 10 House of Lords Cases, 191.) 
 
 James Taylor carried on the business of a damask manufacturer at 
 Hayes Mill, Ovenden, near Halifax, in the county of York. In 1858 he 
 
 1 1 Bro. P. C. 140.
 
 CHAP. VIll] HOLROVn ('. MAKSII AI.I,. 815 
 
 became embarrassed, a sale of iiis effects by auction took place, and the 
 Holroyds, who had previously employed him in the way of his business 
 purchased all the uiacliinery at tlie mill. The machinery was not removed, 
 and it was agreed that Taylor should buy it back for 5000^. An indenture, 
 dated the 20tli September, 1858, was executed, to which A. P. and W. Hol- 
 royd were parties of the first part, James Taylor of tlie second part, and 
 Isaac Brunt of the third part. This indenture declared the "machinery, 
 implements, and things specified in the schedule hereunder written and 
 fixed in the said mill," to belong to the Holroyds ; that Taylor had agreed 
 to purchase the same for 5000^., but could not then pay tiie purchase- 
 money, wherefore it was agreed, &c. that "all the machinery, iniijlements, 
 and things specified in the schedule (hereinafter designated the said 
 premises)" were assigned to Brunt, in trust for Taylor, until a certain 
 demand for payment should be made upon him, and then, in case he should 
 pay to the Holroyds a sum of 5000^., with interest, for him alisolutcly. 
 If default in payment was made. Brunt was to have power to sell, ;ind 
 hold the monies, in pursuance of the trust for sale, upon trust, to pay off 
 the Holroyds, and to pay the surplus, if any, to Taylor. The indenture, 
 in addition to a clause binding Taylor, during the continuance of the trust, 
 to insure to the extent of 5000/. contained the following covenant : "That 
 all macliinery, implements, and things which, during the continuance of 
 this security, shall be fixed or placed in or about the said mill, buildings, 
 and appurtenances, in addition to or substitution for the said premises, or 
 any part thereof, shall, during such continuance as aforesaid, be subject to 
 the trusts, powers, provisoes, and declarations hereinbefore declared and 
 expressed concerning the said premises ; and that tlie said James Taylor, 
 his executors, itc, will at all times, during such continuance as aforesaid, 
 at the request, &c. of the said Holroyds, tlieir executors, &c., do all necessary 
 acts for assuring such added or substituted machinery, implements, and 
 things, so that tlie same may become vested accordingly." The deed was, 
 four days afterwards, duly registered, as a bill of sale, under the 17 ife 18 
 Vict. c. 36. Taylor, who remained in possession, sold and exchanged some 
 of the old machinery, and introduced some new machinery, of which he 
 rendered an account to the Holroyds before April, 1860; but no convey- 
 ance was made of this new machinery to them, nor was any act done l)y 
 them, or on tiielr beiialf, to constitute a formal taking of possession of the 
 added machinery. On the 2nd April, 1860, the Holroyds served Taylor 
 with a demand for payment of the 5000i. and interest, and no payment 
 being made, they, on the 30th April, took possession of the machinery, and 
 advertised it for sale by auction on the 21st May following. 
 
 On the 13th April, 1860, Emil Preller sued out a writ of scire facias 
 against Taylor for the sum of 155Z. 18«. id., damages and costs, wiiich was 
 executed on the following day by James Davis, an officer of Mr. Garth 
 Marshall, tlien high sheriff of York. On the 10th May, 1860, a similar 
 writ, for 138/. 3s. id., was executed by Davis, and on tlie 25th May, 1860,
 
 816 HOLROYD V. MARSHAtL. [CHAP. VIII 
 
 the property was sold by the sheriff. Notice was given to the sheriff of 
 tlie bill of sale executed in favour of the Holroyds. The only part of the 
 machinery claimed by the execution creditors consisted of those things 
 which had been purchased by Taylor since the date of the bill of sale. 
 Tlie sheriff insisted on taking under the writs these added articles, and the 
 Holroyds, on the 30th May, 1860, filed their bill against the sheriff, and 
 the other necessary parties, praying for an assessment of damages and 
 general relief. The cause was heard before Vice-Chancellor Stuart, who, 
 on 27th July, 1860, made an order, declaring that the whole machinery in 
 the mill, including the added and substituted articles, at the time of the 
 execution, vested in the plaintiffs by virtue of the bill of sale. On appeal, 
 before Lord Chancellor Campliell, on the '22nd December, 1860, the Vice 
 Chancellor's order was reversed. This present appeal was then brought'. 
 
 The Lord Chancellor (Lord Westbury), after stating the facts of the 
 case, said : 
 
 My Lords, the question is, whether as to the machinery added and 
 substituted since the date of the mortgage the title of the mortgagees, or 
 that of the judgment creditor, ought to pi-evail. It is admitted that the 
 judgment creditor has no title as to the machinery originally comprised in 
 the bill of sale ; but it is contended that tlie mortgagees had no specific 
 estate or interest in the future machinery. It is also admitted that if the 
 mortgagees had an equitable estate in the added machinery, the same 
 could not be taken in execution by the judgment creditor. 
 
 The question may be easily decided by the application of a few ele- 
 mentary principles long settled in Courts of Equity. In equity it is not 
 necessary for the alienation of property that there should be a formal deed 
 of conveyance. A contract for valuable consideration, by wliich it ■ is 
 agreed to make a present transfer of property, passes at once the beneficial 
 interest, provided the contract is one of which a Court of Equity will decree 
 specific performance. In the language of Lord Hardwicke, the vendor 
 becomes a trustee for the vendee ; subject, of course, to the contract being 
 one to be specifically performed. And this is true, not only of contracts 
 relating to real estate, but also of contracts relating to personal property, 
 provided that the latter are such as a Court of Equity would direct to be 
 specifically pei'formed. 
 
 A contract for the sale of goods, as, for example, of five hundred chests 
 of tea, is not a contract which would be specifically performed, because it 
 does not relate to any chests of tea in particular ; but a contract to sell 
 five hundred chests of the particular kind of tea which is now in my ware- 
 house in Gloucester, is a contract relating to specific property, and which 
 would be specifically performed. The buyer may maintain a suit in equity 
 for the delivery of a specific chattel when it is the subject of a contract, 
 
 ' The arguments are omitted. Ed.
 
 CHAP. VIIl] HOLROYD V. MAUSHALI,. 817 
 
 and for an injunction (if necessary) to restrain the selloi- from deli\(>rini,' 
 it to any other person'. 
 
 The effect in equity of a mere contract as amounting to an alienation, 
 may be illustrated by the law relating to the revocation of wills. If tlie 
 owner of an estate devises it by will, and afterwards contracts to sell it to 
 a purchaser, but dies before the contract is performed, the will is revoked 
 as to the beneficial or equitable interest in the estate, for the contract con- 
 verted the testator into a trustee for the purchaser ; and, in like manner, if 
 the purchaser dies intestate before performance of the contract, the equit- 
 able estate descends to his heir at law, who may require the personal repre- 
 sentative to pay the purcliase money. But all this depends on the contract 
 being such as a Court of Equity would decree to be specifically performed. 
 
 There can be no doubt, therefore, that if the mortgage deed in tlie 
 present case had contained nothing but the contract which is involved in 
 the aforesaid covenant of Taylor, the mortgagor, such contract would ha\e 
 amounted to a valid assignment in equity of the whole of the machinery 
 and chattels in question, supposing such machinery and effects to have been 
 in existence and upon the mill at the time of the execution of the deed. 
 
 But it is alleged tliat this is not the eflect of the contract, because it 
 relates to machinery not existing at the time, but to be acquired and fixed 
 and placed in the mill at a future time. It is quite true that a deed which 
 professes to convey property which is not in existence at the time is as a 
 
 1 " The Solicitor-General, iu his argument, seemed to me to suppose that if there had 
 been a contract by Norrbom merely to send timber to this country, and if in this 
 country timber of Norrbom's had been found, that would in itself have been sufficient 
 in equity to entitle the Court to interfere, and stop that timber. Now, I apprehend, 
 that in that respect there is no difference between law and equity. At law tliere must 
 be a. positive appropriation to give a legal title; that was established iu Wait v. IJaker,- 
 So that however unjustly a party may be acting who says, I shall send you from abroad 
 some timber by a particular ship, if in truth he sends it so as to make it the legal 
 property of another, that legal property must prevail. The difference between law and 
 equity I take to be this : that if there has been an engagement to appropriate a 
 particular cargo, or an engagement to satisfy a contract out of a particular thing, such 
 as to appropriate a part of a larger cargo, in either of those cases equity will interfere, 
 in the one case, to decree what in truth is a specific performance, or something very 
 like a specific performance of the contract to appropriate a particular cargo ; and, iu 
 the other, to give the purchaser a lien upon the larger cai'go, in order to enable him to 
 satisfy himself of the smaller demand. As if a merchant here were to order from the 
 Black Sea a cargo of 100 quarters of wheat, and the correspondent were to srtr, ' I have 
 sent a cargo containing 500 quarters, with directions out of it to let you have 100 
 quarters;' when the .500 quarters arrive, unless there be some legal or equitable right 
 on the part of the holder to interfere, equity will give the merchant a lien upon the 
 larger cargo, just as it would, out of a large fund of money, give a lien on the 
 appropriation of a smaller sum to any person who was equitably entitled to it. But 
 I apprehend that neither in equity nor in law can there be any jurisdiction to say, that 
 because there is property of the person who ought to have fulfilled his contract, 
 therefore you can make that property available for the specific performance of tlie 
 engagement." Per Lord Cranworth, Hoare v. Dresser, 7 II. L. C. 290, .317. Ed. 
 
 2 2 Ex. 1. 
 
 F. 52
 
 818 HOLROYD V. MARSHALL. [CHAP. VIII 
 
 conveyance void at law, simply because there is nothing to convey. So in 
 equity a contract which engages to transfer property, whicli is not in 
 existence, cannot operate as an immediate alienation merely because there 
 is nothing to transfer. 
 
 But if a vendor or mortgagor agrees to sell or mortgage property, real 
 or personal, of which he is not possessed at the time, and he receives the 
 consideration for the contract, and afterwards becomes possessed of property 
 answering the description in the contract, there is no doubt that a Court of 
 Equity would compel him to perform the contract, and that the contract 
 would, in equity, transfer the beneficial interest to the mortgagee or 
 purchaser immediately on the property being acquired. This, of course, 
 assumes that the supposed contract is one of that class of which a Court of 
 Equity would decree the specific performance. If it be so, then immediately 
 on tlie acquisition of the property described the vendor or mortgagor would 
 hold it in trust for the purchaser or mortgagee, according to tlie terms of 
 the contract. For if a contract be in other respects good and tit to be 
 performed, and tlie consideration has been received, incapacity to perform 
 it at the time of its execution will be no answer when the means of doing 
 so are afterwards obtained. 
 
 Apply these familiar principles to the present case ; it follows that im- 
 mediately on the new machinery and eflects being fixed or placed in the 
 mill, they became subject to the operation of the contract, and passed in 
 equity to the mortgagees, to whom Taylor was bound to make a legal con- 
 veyance, and for whom he, in the meantime, was a trustee of tlie property 
 in question. 
 
 There is another criterion to prove that the mortgagee acquired an 
 estate or interest in the added macliinery as soon as it was brought into 
 the mill. If afterwards the mortgagor had attempted to remove any part 
 of such machinery, except for the purpose of substitution, the mortgagee 
 would have been entitled to an injunction to restrain such removal, and 
 that because of his estate in the specific property. The result is, tliat the 
 title of the appellants is to be preferred to that of the judgment creditor. 
 
 Some use was made at the bar and in the Court below of the language 
 attributed to Mr. Bai'on Parke in the case of Moyg \. Baker\ That 
 learned Judge appears to have given, not his own opinion, but what he 
 understood would have been the decision of a Court of Equity upon the case. 
 He is represented as speaking upon the authority of one of the Judges of 
 the Court of Chancery. Any communication so made was of course extra- 
 judicial, and there is much danger in making communications of such a 
 nature the ground of judicial decision ; but I entirely concur in what 
 appears to have been the principle intended to be stated ; for Mr. Baron 
 Paike, speaking of the agreement in the case, says, " It would cover no 
 specific furniture, and would confer no right in equity." I have already 
 explained, that a contract relating to goods, but not to any specific goods, 
 
 ' 3 .M. & Wols. ms.
 
 CHAP. VIIl] LEGAL V. MILLER. Si I) 
 
 would not be tlie subject of a decree for specific performance, and that a 
 contract that could not be specifically performed would not avail to transfer 
 any estate or interest. 
 
 If, therefore, the contract in 3Jogg v. Baker related to no specific 
 furniture, it is true that it would not, at the time of its execution, confer 
 any right in equity; but it is equally true that it would attach on furniture 
 answering the contract when acquired, provided the contract remained in 
 force at the time of such acquisition. 
 
 Whether a correct construction was put upon the agreement in Mogg 
 V. Baker is a diflerent question, and which it is needless to consider, as T 
 am only desirous of shewing that tlie proposition stated by the learned 
 Judge is quite consistent with the principles on which this case ought to 
 be decided. 
 
 I therefore advise your Lordships to reverse the order of Lord Chan- 
 cellor Campbell, and direct the petition of re-hearing presented to him to 
 be dismissed, with costs'. 
 
 The following order was afterwards entered on the Journals : — 
 
 " That the decree or decretal order of the Court of Chancery, of the 
 22nd of December, 1860, be reversed; and that the petition for re-hearing, 
 presented by the said respondent, Emil Preller, to the Lord High Chan- 
 cellor be dismissed, with costs ; and that the cause be remitted back to the 
 Court of Chancery, to do therein as shall be just, and consistent with this 
 judgment." 
 
 Lords' Joiirnala, \th Aiujn^t, 18G2. 
 
 LEGAL V. MILLER. 
 In Cuancerv, June 10, 1750. 
 
 [Reporlfd in 2 Vese)j, Senior, 291).] 
 
 Agreement in writing for taking a house at 32/. per annum ; and part 
 of the agreement was, that the owner should put the house in repair : it 
 was afterward discovered not to be worth while barely to repair the house, 
 but better to pull it down ; and therefore without alteration of the 
 written agreement at all the house was pulled down by consent of tli(^ 
 tenant, apprised of the great expence it would be to the landlord ; and 
 therefore an agreement was by parol only on his part to add SI. per 
 annum, to the :V2L wiiich he was only to give, in case it was repaired. 
 The tenant brought a bill for specific performance to have liis lea.se on the 
 foot of tlie written agreement to pay only tiie 32/. rent. Tlie defndant 
 by his answer set up the parol agieemont. 
 
 ' The other judgraeuts are omitted. 
 
 See Lrntham v. Amor, 47 L. J. Q. B. .581; T.azorus v. And,ndi\ r, 0. P. 1). 318; 
 Clemeutx v. M,nth,wi<, 11 Q. B. D. 808. Ed. 
 
 .)2— 2
 
 820 DAVIS V. SYMONDS. [OHAr. VHI 
 
 SiK John Strange. 
 
 Such evidence is frequently suffered to be read, especially to rebut 
 such an equity as now insisted on by the bill ; as where the agreement is 
 in part carried into execution, parol evidence is allowed to prove that ; or 
 where it is a hard agreement ; and the Court may thereupon decree 
 against the written agreement ; as in 1 Ver. 240, and the single question 
 being here, whether the Court should decree a specific performance of the 
 agreement the plaintiff insists upon, and being satisfied from the parol 
 evidence that it should not, the Court must dismiss the bill. 
 
 For plaintiff it was then insisted, the Court should not dismiss the bill, 
 but on the genei'al relief prayed, should make a decree now according to 
 the agreement defendant set up, though no cross bill for that ; which had 
 been often done upon defendant's own submission. 
 
 Against this it was said, tlie Court never made such a decree on the 
 general relief, where it was inconsistent with the particular relief prayed : 
 though it has been done where not inconsistent. 
 
 Sir John Strange. 
 
 I am still of the same opinion, and tliat the bill should be dismissed 
 with costs ; for that would be very hard upon a defendant, if a plaintiff 
 should unconsoientiously, bring lum into a Court of Equity, when defendant 
 should insist on an agreement different from that the plaintiff' sets up, and 
 the plaintiff should reply to his answer, and insist on his former demand, 
 and go into a long proof ; and afterward, finding he cannot have the 
 decree prayed by his bill, should resort to tliat, which defendant sets up, 
 and insist on a decree for it. 
 
 See SmitJt v. Wheatcro/t, 9 Cli. D. 22.3. Ed. 
 
 DAVIS V. SYMONDS. 
 In the Exchequer, November 15, 1787. 
 
 [Reported in 1 Cox, 402.] 
 
 The Lord Chief Baron delivered his opinion in this cause, which had 
 been argued very much at length. 
 
 Lord Chief Baron. This bill is brought by the plaintiff Davis to 
 compel the specific performance of an agreement, by which, as the case is 
 made on the part of the plaintifl', the defendant Symonds agreed in con- 
 sideration of 800^. to convey the premises in question to the plaintiff 
 Davis and the defendant Howell their heirs, executors, administrators, 
 and assigns, some or one of them, or to such person or persons as they the 
 said Davis and Howell, tlieir heirs, executors, administrators, or assigns, 
 some or one of them sliould direct or appoint. Tliere is in the prayer of
 
 CHAP. VIIl] DAVIS V. SYJfONDS. ,S21 
 
 the bill an iiltei-native that in case the plaintiff Davis shall not be entitled 
 to have a performance of tliis agreement, he may be repaid a sum of 100^. 
 paid by him to Symonds as part of the purchase-money with interest. 
 Davis is tlie sole plaintiff. Tho defendants are three, Symonds witli whom 
 tlie contract was made, Howell tlie joint contractor with the plaintiff, and 
 Ormond who is a mortgagee under Howell. Howell has tjiken a con- 
 veyance from SjTiionds to himself, which the plaintiff charges to have been 
 done in breach of the agreement, and tluit Ormond took under Howell 
 with notice of tlie plaintiff's right, and therefore cannot affect the plaintiff's 
 interest. In support of his case the plaintiff has produced the contract, 
 which certainly imports to be a joint contract. Howell and Davis were of 
 the one part, Symonds of the other part. Symouds agrees to sell to them 
 and they agree to pay. Perhaps it was not necessary for the plaintiff to 
 go further than to produce this instrument to establish the prima facie 
 joint contract : it would be enough to entitle him to the ordinary etjuity 
 which this Coui-t administers by decreeing specific performances : but he 
 has gone further and examined witnesses to prove that the contract being 
 made on the 17th November, 1781, on the 12th December following he 
 advanced 100^. in part of the purchase money, and the receipt is produced 
 from Symonds stating this to be part of the purcliase money; and as the 
 money by the terms of the agreement was not to be paid until the 25th 
 March, 1782, discount was allowed accordingly. He has added some loose 
 evidence of conversations which tend to shew them to have been joint 
 purchasers ; but it is so loose, as to have very little weight. This is the 
 plaintiff's case ; for as to the second agreement stated in the bill, there is 
 no kind of proof of it, and I therefore lay that totally aside. To tliis case 
 of the plaintiff, the defendants set up a variety of defences. First, they 
 say that there having been in fact a conveyance of the estate from 
 Symonds to Howell, this is in fact a performance of the agreement, and a 
 Court of Equity cannot compel a second performance ; and to be sure if 
 the fact be true, the consequence is clear. They argue that tliis agreement 
 being to convey to Davis and Symonds their heirs, executors, administrators, 
 and assigns, some or one of them, &c. the conveyance made to Howell is an 
 execution of the agreement, not only according to the letter, but also ' 
 according to the spirit of it. As to the literal performance, I think the 
 agreement can never be so construed ; it never could be the real meaning 
 of the parties, that the conveyance might be made to one of them singly ; 
 the words must be understood with relation to the possible change of 
 situation of the parties. The obvious meaning was that the contract 
 should be executed to them jointly. The gross absurdity which would 
 attend any other construction is an unansweivible reason for rejecting it ; 
 for the consequence is that Symonds might have made the conveyance to 
 the plaintiff Davis alone. Here are circumstances to shew that Howell 
 was at least the principal contracting party, and therefore the conveyance 
 being made to him does not put this alisurdity in so strong a point of
 
 M22 DAVIS V. SYMONDS. [CHAP. VIII 
 
 view ; Imt the possibility of the other case happening, makes one revolt at 
 siK-h a construction of this agreement. I therefore think there has been 
 no performance of this agreement. It is then insisted that though the 
 agreement purports to be an agreement by which Howell and Davis were 
 to be joint purchasers of the estate for a sum of money to be advanced by 
 them jointly, yet that the real meaning of the agreement was that Howell 
 should be the pui'chaser, and Davis was only to have some interest in the 
 premises by way of security for such part of the purchase money as he 
 should advance for Howell : and it is said on the part of the defendants, 
 that they may read parol evidence to shew this, and they have stated the 
 case in evidence to the Court to see whether this ought to be read. The 
 adraissiljility of this has been disputed. If the defendants had said, we 
 admit that by the agreement Howell and Davis were joint purchasers, but 
 by reason of circumstances dehors the agreement, there arises an equity to 
 make tlie Court say you shall only hold this as a security for money 
 advanced, I should think for this purpose the evidence should be received; 
 for it is not unusual to affirm tlie written instrument, and yet to raise an 
 equity by which it is made a security only for a particular purpose. So 
 in those cases in which young heirs, who have been dealing for their 
 expectancies, have been relieved in equity, the Court says, you shall hold 
 it as a security for the money bona fide advanced, they do not vacate the 
 instrument ; but they admit evidence to support this equity : you do not 
 impeach the agreement, but get at tliis dehors the agreement ; the instru- 
 ment remains undisturbed and is not atlected by the equity raised. But 
 here this is attempted to be carried further, and parol evidence is offered 
 to alter tlie agreement itself. Taking it so, it falls within all the rules in 
 whicii parol evidence has been holden to be inadmissible. The foundation 
 of them is in the general rules of evidence ; in which writing stands 
 higher in the scale than mere parol testimony ; and when treaties are 
 reduced into writing, such writing is taken to express the ultimate sense 
 of the parties, and is to speak for itself. Indeed nothing is so familiar as 
 this idea. At Nisi Prius when an agreement is spoken of, the first 
 question always asked is, whether the agreement is in writing ; if so, there 
 is an end of all parol evidence ; for when parties express their meaning 
 with solemnity, this is very proper to be taken as their final sense of the 
 argument. In the case of a contract respecting land, this general idea 
 receives weight from the circumstance, that you cannot contract at all on 
 that subject but in writing; and this therefore is a further reason for 
 rejecting the parol evidence. In this way only is the Statute of Frauds 
 material, for the foundation and bottom of the objection is in the general 
 rules of evidence. I take this rule to apply in every case where the 
 question is, what is the agreement 1 and this rule applies no further than 
 this precise question; for as often as the question is, what wei'e the 
 collateral circumstances attending the agreement? so often may such 
 collateral circumstances lie proved by parol evidence : there is no law
 
 CHAP. VIIl] DAVIS V. SYMONDS. 823 
 
 which says such collateral circumstances may not be so proved. If any of 
 these collateral circumstances are reduced into writing, tlien the same rule 
 applies to them as to the original agreement ; hut if not, both at law and 
 in equity such collateral circumstances may be proved l)y parol. If duress 
 be pleaded, or a false reading of the deed, you avoid the deed at law by 
 parol evidence ; but then these facts are collateral to the import of the 
 instrument, they are dehors the agreement ; tliey do not go to vary or alter 
 it ; yet admitting tlie trutli of tlie agreement, they tend to slu^w that it 
 ought not to affect the party. These are two instances at law ; lliere are 
 many more in equity, on fraud and circumvention and many other grounds, 
 and you must necessarily admit parol evidence on all such grounds, which 
 are clearly collateral to tlie agreement itself. Now to apply this to the 
 present case : what is the true agreement 1 The defendants say, that it is 
 only an agreement for the security of money. This is not collateral to, 
 liut a part of, the agreement itself. It might have been recei\-ed if you 
 hafl attempted by it only to raise a trust : but here the written agi-eement 
 manifestly imports one thing, and you would by parol evidence shew that 
 it imports no such thing. Rejecting the evidence on this point is the less 
 material, for I think it is not in itself sufficient to shew what the defendant 
 asserts. Davis appears to have endeavoured to assist Howell in making 
 the purchase ; but an objection was made as to Howell's competency to 
 pay the purchase money upon which, though with considerable ivluctance 
 on the part of Howell, yet every other scheme being rejected, this seems 
 to have been their final agreement. 
 
 There are two other points behind, made on the part of the defendant : 
 1st, they say that though the agreement did take place, yet that it was 
 afterwards waived, and that such waiver may be by parol ; and it certainly 
 may be so : the waiver is in its own nature subseepient to, and necessarily 
 collateral to, the agreement, and thei-efore can never bear an}' relation to 
 the rule of evidence above stated. There might indeed have been another 
 rule, that a written instrument shall not be waived by parol ; but in fact 
 Courts of Equity do not consider themselves as bound by any such rule, 
 and it is now clear that a written agreement may be waived so. But in 
 this case I do not think the evidence amounts to any proof of such a 
 waiver; it is very loose, and in some parts inconsistent with Davis's 
 conduct at other times. 
 
 Another point made by the defendants is, that however this might be 
 if tlie parties had come to the Court to have tiiis agreement cancelled, yet 
 that it is a very different consideration, whether the Court will decree a 
 specific performance; and that as this is a remedy superadded to the 
 remedy at law in order to make it more complete, and as the refusal of 
 such superadded remedy is not conclusive on the party, wiio still may have 
 his action at law, the Court therefore has a discretion to look into the cir- 
 cumstances, and see whether in all respects it is tit to interpose by decree- 
 ing a specific performance, and whether the conscience of the Court is
 
 824 DAVIS v. KYMONDS. [CHAP. VIII 
 
 bound. Tlie distinction in respect of that discretion between the case 
 where the bill seeks to set aside the agreement, and where it seeks to have 
 a specific performance of it, is established in authority, and not now to be 
 shaken. The strongest case has been cited to shew this, namely, where a 
 bill was brought to set aside an agreement, and the Court refused to do it, 
 and afterwards a bill was brought to carry the same agreement into 
 execution, and the Court refused to decree it. This therefore establishes 
 the distinction practically and most clearly. We are then to inquire 
 whether the circumstances in this case are such as to make it unfit for the 
 Court to interfere. It has been contended that all the evidence which has 
 been attempted to be used for the other two purposes was equally inap- 
 plicable to this point, as being only parol ; but when it is said that parol 
 evidence shall not afiect written instruments, the vice of the argument 
 turns upon the use of the word " affect," for if it means to " vary it," it is 
 true, and if it is to be carried beyond that meaning, it is not true ; there 
 is nothing so clear as the jurisdiction of the Court to afiect a written 
 instrument by parol testimony ; the Courts of Law do it every day, and in 
 truth set them aside : Courts of Equity do it on other grounds and take a 
 larger field. But this is a question far short of all those ; for here it is 
 only whether the Court, in exercising their discretion, shall from the 
 evidence see reason to act or not to act : this must depend ujjon many 
 circumstances which must of necessity (in general) be evidenced by parol. 
 The case of the Buke of Buchs v. Ward, 3 Bro. P. C. 39, would illustrate 
 this, if necessary, and Hicks v. PhilUpx, Pre. Cha. 575 ; the Court will 
 never decree a specific performance unless the case of the plaintiff is 
 perfectly clear from circumvention and deceit. In Eyre v. I'opham, it 
 seems as if concealing the name of the purchaser was a sufiicient reason 
 for not decreeing a performance. However, we may doubt particular 
 cases, without sliaking the principle, which is clear. In tliis case Howell 
 the son of the former tenant, was desirous of purchasing the estate, and on 
 application to the landlord for that purpose, brings the plaintiff with him 
 to recommend him. The difiiculty arose on the ground of the price : all 
 the rest was agreed. Symonds was afraid Howell would not be able to 
 pay it. Davis was applied to, and he professes to be ready to give Plowell 
 his assistance, and they go clearly on the idea that Davis should give a 
 bond, and should have a security on the estate for what lie should pay. 
 He then insists on having this put in the shape of a joint purchase, 
 holding out that this was only meant as a security, and that Howell might 
 depend on his honour ; and when Ormond applied to him to know jiis 
 intentions, Davis said he only intended it as a security: under these 
 circumstances the conveyance has been made to one party who advanced 
 the whole money. In a case of this kind, where the conduct of the 
 plaintiff has not been honourable, and the Court is not called upon in 
 consequence of any purchase money being paid, why should the Court 
 assist him'? The purchase seems to have gone in the right way. However
 
 CHAP. VIIl] DAVIS V. SYMONDS. 825 
 
 the Court does not deprive him of the benefit of his agreement ; but they 
 will not go out of their way to help him. Let him take his course at law. 
 We do not say the agreement is void ; only that exercising that discretion 
 wjiich Courts of Equity have in these matters, there is enough to influence 
 that discretion and make us sit still. I am therefore of opinion, that as 
 far as the bill seeks a specific performance, it must be dismissed ; and I 
 think it follows that it nuist be dismissed with costs ; for the Courts 
 refusing to give such relief in itself implies a strong disapprobation of the 
 plaintiff's conduct. 
 
 There is another point behind.- The plaintifT advanced 100/. to 
 Symonds, which must be secured to him. He asks by the prayer of his 
 bill, that it may lie repaid him, but this is not regular. We can only take 
 care that it shall be secured to him on the estate. Therefore the bill is 
 not to be dismissed as to that part, until we are satisfied on this head : for 
 the defendants say that the 100/. has been repaid; that it was left on a 
 post at Davis's house, and that it was taken away by somebody, but tiiey 
 do not know who. As to the law of the case, this transaction can never 
 amount to a payment, unless there is evidence to satisfy a jury that Davis 
 in fact received it ; for all paj'ment includes acceptance : there is no other 
 difference between tender and payment. I do not know that it would do, 
 even if tiie money had been left in his house, unless the jury should tliink 
 this evidence so strong as to infer acceptance from it. In truth it has 
 been very absurd conduct of the parties to leave the money in this 
 manner. However all we can do is fjo retain the bill for a year, with 
 liberty in the mean time for the plaintiff' to proceed at law as he shall be 
 advised to recover this money, and the defendant shall not insist in the 
 Statute of Limitations, and if Davis recovers this money, then we will give 
 him a lien on the estate for it. 
 
 HoTUAM, B. The great hinge of the cause is the question on admitting 
 the parol evidence : and tiiis is a question certainly of very great conse- 
 quence. The deed is of such a sort, that on the face of it no doubt can 
 possibly be entertained. It imports to be a joint contract, and if parol 
 evidence were to be received in the manner the defendants wisii, it would 
 be setting up a perfectly distinct contract instead of it : but as to admitting 
 it to shew collateral circumstances, it is not only consistent witli foi-mer 
 authorities, but is absolutely necessary : for fraud must be always dehors 
 the deed; and it would therefore be the height of injustice to exclude it 
 to this point. If the parol evidence is once received, tiiere is an end of the 
 cause ; for upon that it appears that the plaintiff" is not an honest man, 
 and there is consequently no reason for us to interpose : and if his conduct 
 be such, he must pay the costs. 
 
 Pereyn, B. and Thojipson, B. agreed.
 
 826 GERVAIS V. EDWARDS. [CHAP. VIII 
 
 GERVAIS V. EDWARDS. 
 In the Ch.\ncery in Ireland, January 29, 1842. 
 
 {Reported in 2 Dniry d' TJ'arren, 80.) 
 
 The bill stated, tliat at the time of the execution of certain written 
 articles of agreement thereinafter mentioned, the plaintiff and defendant 
 were possessed of estates in tlie county of Tyrone, separated by a stream, 
 wliich frequently during wet seasons overflowed its banks, to the injury 
 of the said lands ; tliat tlie defendant proposed to the plaintiff that they 
 should join in some measure for the remedy of this evil ; and that witli this 
 view, in the month of July, 1838, a written agreement, consisting of eleven 
 articles, was entered into between the said parties. 
 
 By those articles (which were set out verbatim in the bill) it was 
 stipulated, that the course of the stream should be changed ; that, as the 
 effect of making the new channel would be to cut off portions from the 
 estates of both parties, exchanges of land should be respectively made, and 
 that a certain mill-dam should be erected ; and arbitrators were named for 
 the purpose of carrying into effect the arrangement. The fifth clause of 
 the agreement provided, that, in case at the end of twelve months from the 
 making of a certain cut, it should be found to answer the purposes for 
 which it was designed, then the defendant should contribute one-lialf of 
 the expense of making the said cut. The sixth article was in the words 
 following ; viz. 
 
 " That if any damage arise to the lands of said Hugh Gore Edwards, 
 Esq., above said dam, from the erection thereof, the said Kev. Francis 
 Gervais shall give an equivalent in land in the upper part of said ' give 
 and take ' to the said Hugh Gore Edwards, as compensation for such 
 damage ; and which damage, if any, the arbitrators shall &x at the time of 
 adjusting the other matters herein, and also lay off the quantity of land to 
 be given by said Rev. Francis Gervais, in lieu of said damage, if any." 
 
 The terms of the agreement were, in all other respects, immaterial to 
 the question in the cause. 
 
 The arbitrators accordingly proceeded in the discharge of their office, 
 and on the 12th of September, 1838, made their award; but the defendant 
 conceiving that their award was unfavourable to him, declined to comply 
 with or submit to its terms. This refusal on the part of the defendant 
 occasioned the present suit, and the plaintiff having, by his bill, waived all 
 right of contribution under the fifth article of the agreement, prayed 
 generally, that the defendant might be decreed specifically to execute the 
 said proposal and agreement, he undertaking performance on his part. 
 
 Mr. Serjt. Warren, Mr. T. B. C. Smith, Mr. Brooke, and Mr. Shiel, for 
 the plaintifi'.
 
 CHAP. VIIl] GERVAIR )'. EDWARDS. 827 
 
 The Attorney-General, ^Ir. Litton, and Mr. James Dohertij for the cte- 
 fendant. 
 
 It would be impossible to execute tliese articles in toto; tliey are unin- 
 telligible and uncertain. The Court cannot execute an agreement like the 
 present, of an executory character, providing for matters, wliich are con- 
 tinually altering, Buxton V. Lister^; in which case Lord Hardwicke says, 
 " Notiiing is more e.stablished in this Court, than that every agreement of 
 this kind ought to be certain, fair, and just in all its parts." But, besides 
 this, the Court will not enforce a contract, when one party cannot perform 
 his part of it, Harnett v. Yiehling-. 
 
 Mr. Brooke, in reply. 
 
 It is true, the defendant says he has a great olyection to perform this 
 conti'act ; but he does not state that the execution would be impossible, 
 nor is the fact so ; the sixth article, upon which the entire difiiculty turns, 
 is not prospective ; it has reference, no doubt, to a calculation to be made; 
 but it is, in eflect, an agreement for an exchange, and may be cai-ried out 
 by a deed, with proper covenants. In Buxton v. Lister, the bill was dis- 
 missed on the ground of misrepresentation. Davis v. Hone^ shews, that 
 the Court will execute an agreement according to a conscientious modifica- 
 tion of it, as far as circumstances will permit. No ditticulty can ensue 
 from its being an award, the specific performance of which is sought. Wood 
 V. G-riffith*. 
 
 The Lord Chancellor : 
 
 If tlie jurisdiction of this Court permitted it, I should willingly grant 
 a specific performance of this agreement, because the merits are altogether 
 on the side of the plaintitF; but I do not see how it is possible specifically 
 to execute this contract. The Court acts only, when it can perform the 
 very thing, in the terms specifically agreed upon ; but when we come to 
 the execution of a contract, depending upon many particulars, and upon 
 uncertain events, the Court must see, whether it can be specifically exe- 
 cuted ; nothing can be left to depend upon chance ; the Court must itself 
 execute the whole contract. There are cases, where some of the acts to be 
 done, consequent on the specific execution of the contract, may be per- 
 formed subsequently. Thus a contract for sale of timber can be specifically 
 executed, although the timber is to be cut down at a future time or at 
 intervals, and the money to be paid liy instalments. It is a ceitain 
 contract, and the manner of dealing with the thing sold, by future cuttings, 
 is no objection to a specific performance. The one man sells the timber, 
 and the other pays for it the price contracted for. Here part of this 
 contract is at once capable of a specific execution; tiiis admits of no doubt. 
 
 But, then, by the rule of the Court, if I am called upon to execute the 
 contract, I must myself specifically execute every portion of it ; I cannot 
 give a partial execution of the contract. The plaintiff was perfectly aware 
 
 ' 3 Atk. 383. - 2 Sch. & L. 549. 554. " 2 Sch. & L. 341. < 1 Swanst. 43.
 
 82S GERVAIS V. EDWARDS. [CHAP. VIII 
 
 of the difficulties arising out of the contract, and he accordingly, by liis 
 bill, waived his right to compensation, by way of payment of half the 
 expenses from Mr Edwards of making a certain cut, pursuant to the terms 
 of the fifth article ; that part of the contract being one, whicli the Court 
 could not specifically execute ; but he was not enabled to remove what is 
 the real difficulty arising from the sixth clause, because that contains a 
 stipulation, not for the benefit of the plaintiff, but for the advantage of tlie 
 defendant, and which the plaintiff could not waive. That important sti- 
 pulation I cannot disregard. It is said, this is in effect an exchange (wjiich 
 I think it is), and that it may be carried out by a deed, and tliat there may 
 be covenants to execute that portion of it, which is to be performed here- 
 after. There is no autliority in support of this ; nor is the difficulty re- 
 moved, by saying that a deed may be executed to carry out the contract. 
 If a man agree to do a certain act ; for example, to dispose of an estate, 
 with a covenant for something to be done hereafter, the Court can carry 
 such a contract into specific execution. The decree would give all that 
 was presently contracted for ; the immediate transfer of the estate itself, 
 and compel the party to enter into the covenant to do the particular 
 thing, But here there is an entire contract, which must be executed. 
 Certain things were to be done at once, and certain otlier things were 
 dependent upon future contingencies. The plaintiff has waived his right,- 
 as far as he could. But by another clause' it is provided, that if any 
 damage should arise to the lands of Mr Edwards, from the erection of tlie 
 dam, the plaintiif should give an equivalent in land as a compensation for 
 such damage ; which damage the arbitrators were to fix at the time of 
 adjusting the other matters, and also lay off the quantity of land to be 
 given in lieu of such damage. 
 
 It is said, that this operates either in pr«senti, and has been executed 
 by the award, or that the agreement, in this respect, might form a part of 
 the deed. I am clearly of opinion, that this is not a matter to be presently 
 ascertained, but is dependent upon the operation of works contracted to be 
 erected, and can only be ascertained, after the works liave been in opera- 
 tion. The provision was to guard against the pi'obable chance of future 
 damage to the defendant's land ; no evidence has been read, to shew that 
 it formed any part of the award, or that the arbitrators took it into their 
 consideration; and the language of the award does not imply that they did. 
 Well, then, it is a prospective measure, and what is the decree to be 1 It 
 cannot be made the subject of covenant ; that is not the agreement of the 
 parties. Am I to decree the specific performance of that, which is now 
 capable of being executed '? and then (for I must go on) am I to decree, 
 that if hereafter, when the works, not now commenced, are completed, 
 damage should arise to the defendant's land, the arbitrators shall ascertain 
 the damage, and the plaintiff shall convey land, equivalent in value to such 
 damage? No one ever heard of such a decree. If the case should e\er 
 
 1 Sixth clause.
 
 f'HAV. VIIl] MARTIN V. NUTKIN. «20 
 
 arise of damage, it would, I dare say, lead to a new bill being filed, new 
 witnesses, new questions as to the extent of the damage sustained, and 
 whether the arbitrators acted fairly, and had valued the property correctly. 
 It is impossible to execute this contract specifically. No precedent has 
 been cited on either side, and indeed it was scarcely worth while searching 
 for precedents, as the question is one of principle; but the authorities 
 upon the right of the Court to compel the execution of a contract, where 
 tlie price is to be fixed by arbitrators, will shew, how many difficulties the 
 Court would have to struggle with in this case. I am, however, so little 
 satisfied with the conduct of the defendant, in liis attempt to evade the con- 
 tract, that, although I must dismiss the bill, I shall do so without costs. 
 
 Dr. martin and LADY ARABELLA HOWARD , t, 
 
 -„T !■ Plaintiffs. 
 
 HIS Wife ...... 
 
 NUTKIN & AL' Defendants. 
 
 In Chancery, Hilary Term, 1724. 
 
 [Reported in 2 Pecre n'illiiims, 206.] 
 
 The bill was brought against the defendants the churchwardens, and 
 against the parson and overseers and several of the inhabitants of the 
 town of Hammersmith, to stay the ringing of the five o'clock bell of the 
 town of Hammersmith, which usually had been rung at five of the clock in 
 the morning from Michaelmas to Candlemas, except upon holydays, and 
 the twelve days at Christmas. 
 
 The case was, the plaintifl's' doctor Martin and dame Arabella Howard 
 his wife had a house at Hammersmith very near the church, and Lady 
 Howard being of a sickly and weak constitution, was much disturbed and 
 disquieted by the ringing of this bell at five of the clock in tlie morning, 
 and was about parting with her house and removing to another parish, 
 when it was intimated to her on behalf of the parish, that she might 
 purchase her quiet at a reasonable sum to be laid out for the benefit of the 
 parish. 
 
 Upon which it was proposed on behalf of the plaintiffs, that they 
 should build a cupola to the church, and erect a clock and new bell, pro- 
 vided that during the lives of the plaintiffs and of the survivor of them, 
 the five o'clock bell sjiould not be rung ; and accordingly, on a Sunday 
 after morning service, notice was given at the church that the vestry would 
 meet upon the occasions of the parish. In consequence of which they did 
 meet ; when this proposal was made and agreed to, and an entry being 
 made of it in the parish vestry-book, the same was signed by the parson,
 
 880 TULK V. MOXHAY. [CHAP. VIII 
 
 churchwardens, overseers, and several of tlie inhabitants ; after which the 
 plaintiffs and the defendants the parson, churchwardens, overseers and 
 some other of the inhabitants executed articles reciting the proposal and 
 agreement at the vestry, and the plaintiffs thereby covenanted to erect a 
 new cupola, clock and bell, and tlie defendants on their parts covenanted, 
 that the five o'clock bell should not be rung during the lives of the 
 plaintiffs, or the survivor of tliem ; after this the plaintiffs caused the 
 timber to be brought into the churchyard for the erecting of the cupola, 
 which was publicly seen, and the plaintiffs were at the charge of erecting 
 the cupola, clock and bell, and the live o'clock bell was silenced for about 
 two years. 
 
 But the defendant Nutkin, an ale-house keeper, being since chosen 
 churchwarden, a new order of vestry was obtained for the ringing again 
 of the five o'clock bell, which occasioned the plaintiffs to bring their bill to 
 injoin the ringing of this bell ; and on motion Lord Chancellor Macclesfield 
 granted an injunction to stay the ringing until the hearing. 
 
 And now the cause came on before the Lord Commissioners Gilbert and 
 Raymond, who decreed that the injunction should continue during the lives 
 of the plaintiffs and the survivor of them ; for that here was a meritorious 
 consideration executed on the plaintiffs' side ; that the churchwardens were 
 a corporation, and might sell the bells or silence them, and make a reason- 
 able agreement beneficial for the parish, and thereby bind the parishioners 
 and their successors as also tlie succeeding churchwardens ; tliat the ring- 
 ing the five o'clock bell did not seem to Ije of any use to the parish, though 
 of very ill consequence to the plaintiff the Lady Howard, and ample 
 recompense had been made to the pai-ish by the plaintiffs both in the 
 expense of the cupola, clock and bell, and also of 1500^. laid out in im- 
 proving the plaintiffs' own house, which otherwise they would have left ; 
 and it moreover appearing tliat the majority and better part of the parish 
 continued willing to abide by this agreement and protested against the new 
 order. 
 
 The Court thereupon decreed an injunction against the ringing of this 
 five o'clock bell accordingly. 
 
 TULK V. MOXHAY. 
 In the Chancery, December 22, 1848. 
 
 [Reported in 2 Phillips, 77i.] 
 
 In the year 1808 the plaintiff, being then the owner in fee of the vacant 
 piece of ground in Leicester Square, as well as of several of the houses 
 forming tlie Square, sold the piece of ground )iy the description of
 
 CHAP. VIIl] TULK V. MOXHAY. 8S1 
 
 " Leicester Square Garden or Pleasure Ground, with tlie equestrian statue 
 then standing in the centre thereof, and the iron railing and stone work 
 round the same," to one Elms in fee : and tlie deed of conveyance con- 
 tained a covenant by Elms, for himself, his lieirs, and assigns, witli the 
 plaintifi', his heirs, executors, and administrators, " that Elms, his lieirs, 
 and assigns should, and would from time to time, and at all times tliere- 
 after at his and their own costs and charges, keep and maintain tlie said 
 piece of ground and Square Garden, and the iron railing round the same 
 in its then form, and in sutEcient and proper repair as a Square Garden 
 and Pleasure Ground, in an open state, uncovered with any buildings, in 
 neat and ornamental order ; and that it should be lawful for the inhabi- 
 tants of Leicester Square, tenants of the plaintiff', on payment of a reason- 
 able I'ent for the same, to have keys at their own expense and the privilege 
 of admission therewith at any time or times into the said Square Garden 
 and Pleasure Ground." 
 
 The piece of land so conveyed passed by divers mesne conveyances into 
 the hands of the defendant, whose purchase deed contained no similar 
 covenant with his vendor : but he admitted that he had purchased with 
 notice of the covenant in the deed of 1808. 
 
 The defendant ha\ing manifested an intention to alter the cliaracter of 
 the Square Garden, and asserted a right, if he thought fit, to build upon it, 
 the plaintiflF, who still remained owner of several houses in the Square, 
 filed this bill for an injunction ; and an injunction was granted by the 
 Master of the Rolls, to restrain the defendant from converting or using 
 the piece of ground and Square Garden, and tlie iron I'ailiiig round the 
 same, to or for any other purpose than as a Square Garden and Pleasure 
 Ground in an open state, and uncovered with buildings. 
 
 On a motion, now made, to discharge that order, 
 
 Mr. R. Palmer, for the defendant, contended that the covenant did not 
 run with the land, so as to be binding at law upon a purchaser from the 
 covenantor, and he relied on the dictum of Lord Brougham, C., in 
 Keppelly. Bayley^, to the effect that notice of such a covenant did not give 
 a Court of Equity jurisdiction to enforce it by injunction against such 
 purchaser, inasmuch as " the knowledge by an assignee of an estate, that 
 his assignor had assumed to bind others than the law authorised him to 
 aflfect by his contract, — had attempted to create a burthen upon property 
 which was inconsistent with the nature of that property, and unknown to 
 the principles of the law — could not bind such assignee by aflfecting his 
 conscience." In applying that doctrine to the present case, he drew a 
 distinction between a formal covenant as this was, and a contract existing 
 in mere agreement, and requiring some further act to carry it into effect ; 
 contending tliat executor}- contracts of the latter description were alone 
 such as were binding in equity upon purchasers with notice ; foi- that 
 whei-e the contract between the parties was executed in the form of a 
 
 ' 2 M. * K. 547.
 
 832 TULK V. MOXHAY. [CHAP. YIII 
 
 covenant, their mutual riglits and liabilities were determined by the legal 
 operation of that instrument, and that if a Court of Equity were to give 
 a more extended operation to such covenant, it would be giving the party 
 that for which he had never contracted. He admitted, indeed, that the 
 decisions of the Vice-Chancellor of England in Whatman v. Gibson\ and 
 Schreiher v. Creed', were not reconcileable with that doctrine; but he 
 referred to the present Lord Chancellor's order, on appeal, in Mann v. 
 Stephens^, as apparently sanctioning it by the liberty there given to the 
 plaintift" to bring an action, from which it was to be inferred, that his 
 Lordship thought that the right of the plaintiff to relief in equity de- 
 pended upon, and was commensurate with, his right of action upon the 
 covexiant at law. 
 
 The Lord Chancellor (without calling upon the other side). 
 
 That this Court has jurisdiction to enforce a contract between the 
 owner of land and his neighbour purchasing a part of it, that the latter 
 shall either use or abstain from using the land purchased in a particular 
 way, is what I never knew disputed. Here there is no question about the 
 contract : the owner of certain houses in the Square sells the land adjoin- 
 ing, with a covenant from the purchaser not to use it for any other purpose 
 than as a Square Garden. And it is now contended, not that the vendee 
 could violate that contract, but that he might sell the piece of land, and 
 that the purchaser from him may violate it without this Court having 
 any power to interfere. If that were so, it would be impossible for an 
 owner of land to sell part of it without incurring the risk of rendering 
 what he retains worthless. It is said that, the covenant being one which 
 does not run with the land, this Court cannot enforce it ; but the question 
 is, not whether the covenant runs with the land, but whether a party 
 shall be permitted to use the land in a manner inconsistent with the con- 
 tract entered into by his vendor, and with notice of which he purchased. 
 Of course, the price would be affected by the covenant, and nothing could 
 be more inequitable than that the original purchaser should be able to sell 
 the property the next day for a greater price, in consideration of the 
 assignee being allowed to escape from the liability which he had himself 
 undertaken. 
 
 That the question does not depend upon whether the covenant runs 
 with the land, is evident from this, that if there was a mere agreement and 
 no covenant, this Court would enforce it against a party purchasing with 
 notice of it ; for if an equity is attached to the property by the owner, 
 no one purchasing with notice of that equity can stand in a different 
 situation from the party from whom he purchased. There are not only 
 cases before the Vice-Chancellor of England, in which he considered that 
 doctrine as not in dispute ; but looking at the ground on which Lord 
 Eldon disposed of the case of the Duke of Bedford v. The Trustees of th-e 
 1 9 Sim. 196. ^ jo Sim. 35. ■■' 15 Sim. 379.
 
 (!1IAP. Via] PIGGO'l'T V. STUATTON. 833 
 
 British Museicm', it is impossible to suppose that he entcrtiiincd any doulit 
 of it. In tlie case of Maityi v. Stephens before me, I ne\er intcndecl to 
 make tlie injunction depend upon the result of tlie action : nor does the 
 order imply it. The motion was, to discharge an order for thi; commit- 
 ment of the defendant for an alleged breach of the injunction, and also to 
 dissolve the injunction. I upheld the injunction, but dischai'ged the order 
 of conniiitment, on the ground that it was not clearly proved that any 
 breach had been committed ; but there being a doubt whether part of tlie 
 premises on which the defendant was proceeding to build, was locally 
 situated within what was called the Dell, on which alone he had under the 
 covenant a right to build at all, and the plaintiff insisting that it was not, 
 I thought the pendency of the suit ought not to prejudice the plaintiff in 
 his right to bring an action if he thought he had such right, and, there- 
 fore, I gave him libei'ty to do so. 
 
 With respect to the observations of Lord Bi'ougham in Keppcll v. 
 Bailey he never could have meant to lay down, that this Court wouki not 
 enforce an equity attached to land by tlie owner, unless under such circum- 
 stances as would maintain an action at law. If that he the result of his 
 observations, I can only say that I cannot coincide with it. 
 
 I think the cases cited before the Vice-Chancellor and this decision of 
 the Master of the Rolls pei-fectly right, and, therefore, that this motion 
 must be refused with costs *. 
 
 * See Haywood v. The Brunswick Permanent Benefit Building Society, 8 Q. B. D. 
 403. Ed. 
 
 PIGGOTT V. STRATTON. 
 In Chancery, November 3, 4. 12, 1859. 
 
 (lieported in 1 Dc Gex, Fisher it Jones, 33.) 
 
 This was an appeal by the defendant Stratton from a decree made l)y 
 Vice-Chancellor Wood, restraining the defendants Stratton and llarboui- 
 from building on a certain piece of land any messuages not standing alone 
 and detached, or not having between every two of them an open space of 
 thirty feet at least. 
 
 By an indenture of lease, dated the llitli of November, 1845, and 
 made between the late Sir Richard Simeon of the one part, and tiie de- 
 fendant Stratton of the other part, in consideration of the rents and 
 covenants therein contained and reserved on the lessee's part to be paid 
 and performed, Sir Richard Simeon demised to Stratton, his executors, 
 
 • 2 My. & K. 552. 
 F 53
 
 834 PIGGOTT V. STRATTON. [CHAP. VIII 
 
 administrators and assigns, three pieces of land on the sea coast in the 
 Isle of Wight, marked in the plan drawn in the margin of the indenture 
 with the letters A, B and C, for the term of 999 years, from the 6th of 
 July, 1845. This indenture contained (amongst other covenants) covenants 
 by Stratton, for himself, his heirs, executors, administrators and assigns, 
 with Sir Richard Simeon, his heirs and assigns, that Stratton, his executors, 
 administrators and assigns, should, within the period of three years, to be 
 computed from the 6th of July, 1845, build and completely finish, in a 
 substantial and workmanlike manner, upon some part of the premises, at 
 least two good and substantial brick or stone messuages or dwelling-houses, 
 with suitable outbuildings, and which, in the opinion of the surveyor for 
 the time being of Sir Richard Simeon, his heirs or assigns, should be of the 
 value of 1500^. each, at the least; and that in case Stratton, his executors, 
 administrators, undertenants or assigns, should build on the premises more 
 than two messuages, then each additional messuage should be substantially 
 built of brick or stone, and should be, in the opinion of the surveyor, of 
 the value of 500Z. at the least ; and that evei-y such additional messuage 
 or dwelling-house should stand alone and detached ; and that between 
 every two such additional messuages or buildings there should be an open 
 space of thirty feet at the least. 
 
 The lands comprised in the above lease were situate near the sea shore. 
 The piece of land marked C, lay between the piece of land marked B and 
 the sea, and was the only land upon which buildings could be erected so 
 as to obstruct the sea view from houses built upon the piece of land 
 marked B. 
 
 After the granting of this lease, Stratton entered into negotiations 
 with several persons to grant them underleases of portions of the property, 
 and, amongst others, with the defendant Harbour for an underlease of part 
 of plot B, for the purpose of building marine villas upon it. Harbour, who 
 was a builder, asked Stratton what buildings could be erected on plot C. 
 Stratton replied that he (Stratton) could not build houses on C at a less 
 distance than thirty feet from each other, because his lease forbade his 
 doing so. Harbour inspected the draft of the lease, and lieing satisfied 
 with such a restriction as to the houses to be built on plot C, he agreed to 
 take the underlease, and by an indenture dated the 17th of December, 
 1851, and made between Stratton of the one part, and Harbour of the 
 other part, in consideration of the rents and covenants thereinafter reserved 
 and contained on the lessee's part to be paid and performed, Stratton de- 
 mised and leased to Harbour a portion of the piece of land marked B, for 
 the term of 970 years, at the yearly rent of 18?. And in the same in- 
 denture was contained a covenant by Harbour with Stratton, that he 
 Harbour would, within one year from the date thereof, erect and com- 
 pletely finish, in a substantial and workmanlike manner, a good substantial 
 stone or brick messuage or dwelling-house on some part of the land 
 thereby demised, and winch, in the opinion of the surveyor for the time
 
 CHAP. VIIl] PIGGOTT v. STRATTON. 835 
 
 being of Sir Richard Sinieon, or his lieirs, slioulcl ho of the value of 300/. 
 at the least, or, in lieu of such house, .should liuild two seiiii-detaclied 
 dwelling-houses under the same roof, wliich together should, in tiie opinion 
 of the same surveyor, be worth 500/. And, by the same underlease, after 
 a recital tliat the land thereby demised was (with other lands) granted and 
 demised by Sir Eichard Simeon to Stratton by an indentuie of lease of the 
 12th of November, 1845, for the term of 999 years, subject to the rent 
 and covenants therein reserved and contained, Stratton, for liimself, his 
 heirs, executors, administrators and assigns, covenanted with Harbour, his 
 executors, administrators and assigns, that he Stratton, his executors, ad- 
 ministrators and assigns, would thenceforth pay the rent and observe tiie 
 lessee's covenants reserved and contained in the same lease, and effectually 
 keep indemnified Harbour, his executors, administrators and assigns, 
 therefrom and from all actions, suits and other proceedings, loss, costs, 
 charges, damages and expenses by reason of the non-payment or non- 
 perfonnance of the same rent and covenants, or either of them, or by 
 reason of any other matter or thing relating thereto. Harbour, by the 
 same indenture, covenanted with Stratton to perform, on his part, as to 
 tiie land in the underlease, the covenants contained in the original lease of 
 November, 1845. 
 
 Upon obtaining this underlease. Harbour proceeded to erect two semi- 
 detached messuages on the piece of land therein comprised ; and by an 
 indenture dated the 15th of November, 1853, he assigned the land, with 
 the messuages upon it, to the plaintiff, her executors, administrators and 
 assigns, for the then residue of the term of 970 years granted by the 
 underlease of the 17th of December, 1851, subject to the rent and 
 covenants. 
 
 In the year 1854, Stratton surrendered the original lease of the 12th 
 of November, 1845, to Sir John Simeon, the successor of Sir Richard 
 Simeon, and, in consideration of such surrender, obtained from Sir John a 
 new lease of the property thereua comprised, with covenants as to building 
 difl'ering from those contained in the original lease, and so as to allow of 
 his building upon the land marked C without keeping an interval of thirty 
 feet between every two of the buildings to be erected by him. 
 
 On the 2nd of June, 1857, Stratton underlet to tlie defendant Perkis 
 a part of the land marked C, lying opposite to Mrs. Piggott's houses. 
 Perkis some time afterwards parted wnth his interest to Harbour, who, 
 with Stratton's concurrence, and as it was stated under an indenniity from 
 him, commenced building on this piece of ground houses at a much less 
 interval than thirty feet from each other, though in accordance with the 
 terms of the lease from Sir John Simeon to Stratton. Tliese houses were 
 so placed that when completed they would shut out the sea view from the 
 plaintiff's houses, which view would not iiave been seriously affected if tiiey 
 had been built thirty feet apart. The plaintiff then filed lier bill against 
 Stratton and Perkis to restrain such building, and on Harbour's interest 
 
 53—2
 
 836 PIGGOTT V. STRA.TTON. [CHAP. VI I! 
 
 liciii!,' discovered lie was made a party by amendment. On the 18th of 
 November, 1858, the plaintitt' obtained an interlocutory injunction against 
 Harbour. On the 19tli of April, 1859, the case was lieard on motion for 
 decree, and Vice-Cliancellor Wood made a decree' dismissing the bill 
 without costs as against Perkis, continuing the injunction against Harliour 
 for the residue of liis term of 970 years, and granting an injunction to 
 restrain Stratton during the term of 970 years, his workmen, servants and 
 agents, from building on tlie piece of land marked C, or any part thereof, 
 any messuages or dwelling-liouses not standing alone and detached, or not 
 having between every two of such messuages or buildings an open space of 
 thirty feet at the least. 
 
 The defendant Stratton appealed from this decree. 
 
 Mr. Bolt and Mr. Soutligate for the plaintiff, in support of the decree". 
 
 Mr. Eoundell Palmer, Mr. Daniel and Mr. C. T. Sinvpson for the ap- 
 pellants. 
 
 The Lord Chancellor. 
 
 I am of opinion that the decree appealed against ouglit to be affirmed. 
 
 The injunction was claimed on two grounds : 1st, on the legal con- 
 struction of a covenant entered into by Stratton with Harbour in an in- 
 denture of lease dated 17th December, 1851 ; 2nd, upon an equity arising 
 from a parol representation made by Stratton to Harbour before and at 
 the time when this lease was granted, and from Stratton's subsequent 
 conduct in encouraging Harbour to act on that representation. 
 
 The Vice-Chancellor held that the plaintiff was not entitled to the 
 injunction on the first gi'ound, but was entitled to it on the second. 
 
 It seems to me that on either ground the injunction may be supported. 
 
 The first question depends upon whether Stratton is to be considered, 
 after surrendering to Sir Richard Simeon the lease of 1845, as under a 
 covenant to Harbour not to build houses on tlie land marked 6' in that 
 lease, so as to obstruct the sea-view from houses built on tlie land marked 
 B ; and this depends entirely upon the construction of the underlease of 
 1851, from Stratton to Harbour, regard being had to certain facts then 
 existing. These facts are, that by the lease of 1845 Sir Richard Simeon 
 had demised to Stratton for 999 years a part of his estate in the Isle of 
 Wight, on the Solent, consisting of three plots marked A, B and C, and 
 Stratton had covenanted that he would not build houses on C without a 
 certain interval between them, which would have permitted a sea-view 
 across C from houses built on B ; that in the year 1851 Stratton proposed 
 to underlet to Haibour for 970 years a considerable part of the plot 
 marked B, for the purpose of building marine villas upon it; that the value 
 of such land depended materially upon tlie houses to be erected upon it 
 having a view of the sea ; that Harbour, during the negotiation had ex- 
 pressed solicitude upon this subject, and that, to quiet him, Stratton said 
 
 » Johus. 3U. 2 The arguments are omitted. Ed.
 
 CHAP, viii] nnr.oTT c stratton. 837 
 
 tliat he Stratton was hound hy his lease of 1845 not to build houses which 
 could have this eflect. Under these circumstances, the underlease of 18;')! 
 was executed, containing a covenant by Stratton to Hai-boui-, by which, 
 after a recital of the lease of 1845, Stratton "for himself, his heirs, executors, 
 administrators and assigns, covenanted with Harbour, his executors, ad- 
 ministrators and assigns, that he, Stratton, his executors, administrators 
 and assigns, would thenceforth observe the lessee's covenants contained in 
 the same lease." The underlease does not I'epcat the words of the covenant 
 in the lease as to the interval to be left between the houses to be built 
 on C. But verba relata inesse videntur ; and, according to the dictum of 
 Parke, B., in Doughty v. Bowman^, "a covenant to perform tiie covenants 
 of a lease has no other eflect than if the former covenants had been in- 
 serted." I conceive, therefore, that this covenant in the underlease was 
 tantamount to a covenant by Stratton for himself, his heirs, executoi's, ad- 
 ministrators and assigns, not to build houses on without lea\ung the sti- 
 pulated interval between them. Is not tiiis covenant still binding upon 
 Stratton ? He admits that it was binding upon him till he surrendered 
 the lease of 1845, and that till then an injunction might have been obtained 
 by Harbour against his building houses on C contrary to the covenant. 
 He now relies upon the surrender. I entirely concur in the gener.al 
 maxim that a covenant to perform the covenants of ;i lease is only binding 
 during the subsistence of the lease. But, looking to the covenant in this 
 undei'lease, it is evident to me that the parties intended that, in as far as 
 it conferred any benefit upon Harbour, it should remain in force during 
 the currency of the underlease. Harbour acquired a material benefit by 
 Stratton's covenant to him to perform the covenant in the lease from Sir 
 Richard Simeon as to the mode in which the houses were to be erected 
 between B and the margin of the Solent. It cannot properly be callinl an 
 easement or a servitude over C, but Harbour acquired a light to an amenity, 
 which materially enhanced the value of the land which was sublet to him, 
 and restrained the use of part of the land demised to Stratton. If tlieix? 
 had been in the underlease a direct, express, specific covenant by Stratton 
 that, during the currency of the underlease, he would not build ujion C so 
 as to injure the prospect from B, it was not contended that this covenant 
 would have been affected by the surrender. But I conceive that the 
 covenant to perform all the covenants in the lease, which contained such a 
 covenant, is an exact equivalent, ^^'ilen Stratton had sublet B, at the 
 same time restraining the mode of enjoying C during the currency of the 
 underlease, he could not by any surrender derogate from the rigiit which 
 Harbour had acquired. Harbour was a stranger to tlie surrender, and 
 could not be prejudiced l)y it. With respect to strangers, the estate out 
 of which an interest has been granted to them is supposed to continue after 
 the surrender. Thus, " if tenant for life grant a rent-chiirge and after sur- 
 render, yet the rent remaineth ; for to that purpose he that is the surrenderee 
 
 ' 11 Q. B. 154.
 
 838 PIGGOTT V. STRATTON. [CHAP. VIII 
 
 cometh in under the charge'." So in Davenport's Case^, tenant for fifteen 
 years of a rectory, to which the advowson of a vicarage was appendant, 
 having granted the next presentation to the vicarage if it should become 
 vacant during the term which the grantor had in the rectory, surrendered 
 his term to the reversioner ; the vicarage became void before the expira- 
 tion of tlie fifteen years, and in quare impedit the question arose, whether 
 tlie surrender wliich as between the parties liad put an end to tlie term for 
 years had extinguished the right of tlie grantee to the next presentation. 
 Held, that it had not, because the term, for the benefit of the grantee, had 
 to some respect continuance, although in rei veritate it was determined. 
 In Doe d. Beadon v. Pyhe^, the same doctrine was laid down and acted 
 upon. Lord Ellenborough saying, " We consider it clear law that though 
 a surrender operates between the parties as an extinguishment of the 
 interest, it does not operate as to third persons who at the time of the 
 surrender had rights which such extinguishment would destroy, and that 
 as to them the surrender operates only as a grant, subject to their right." 
 
 Therefore if Stratton before the surrender of the lease of 1845, is sup- 
 posed to have covenanted in the underlease to Harbour so as to give 
 Harbour an interest in any part of the land demised by the lease of 184.5, 
 upon that interest the subsequent surrender could have no operation. 
 That such was the intention of the parties when the underlease of 1851 
 was executed, I cannot doubt, and I think that this intention is sufticiently 
 manifested by the language they have employed. To get at the intention 
 of covenants it is not necessary to look for any technical form of words. 
 The principles on which covenants are to be construed are elaborately and 
 lucidly laid down and illustrated in the judgment of Lord Chancellor 
 Chelmsford, in the late case of Monypenny v. Monypenny'^, in which he 
 overruled (I think very properly) the judgment of the common law judges 
 who had departed from these principles. 
 
 If there was such an existing covenant by Stratton to Harbour, it is 
 admitted that Harbour, before the assignment of his term to the plaintifi', 
 would have been entitled to the injunction; and that the injunction granted 
 to the plaintiff, the assignee of his term, cannot be impeached. 
 
 But, supposing that there had been no covenant on which Harbour could 
 have maintained an action at law against Stratton for building a row of 
 houses continuously on C, I am of opinion that, on equitable grounds, the 
 injunction was properly granted. The evidence on this subject was in 
 some degree conflicting ; and, almost at the close of the argument on this 
 appeal, an application was made that Stratton and Harbour might be 
 examined viva voce before us. No such application was made in the Court 
 below, and there the Court was satisfied of the truth of Harbour's 
 statements. Now to re-examine the parties would be most dangerous 
 after long legal discussions on the materiality of controverted facts, and to 
 
 1 Co. Liu. 338 h. "- 8 Kep. 144 h. ^ 5 M. & S. 146. 
 
 ■• 3 De G. & 3. .572.
 
 CHAP. VIIl] PIGGOTT V. STRATTON. 830 
 
 satisfy my mind this is wliolly unnecessary, for on the points on wliicli 
 Stratton and Harbour ditier, tlio probability is strongly in favour of tlie 
 testimony of Harbour, and liis evidence is materially corroborated by otiier 
 witnesses. Harbour being an experienced builder as well as Stratton, the 
 importance of preserving the sea view was well known to both, and it 
 would have been strange if Harbour had not mentioned this to Stratton 
 during the negotiation, and equally strange if no reference had been made 
 by Stratton to the covenant in his lease by wiiicli it would be preserved ; 
 and it is sworn that Stratton had made similar representations when 
 negotiating for subletting to otiiers another part of the land demised to 
 him by the lease of 1845. I give faith to the evidence of Harbour, who 
 swears this — "I put the question about buildings in front to the defendant 
 Stratton, and he told me he could not build closer than thirty feet, because 
 tlie lease from Sir Richard Simeon forbade him, and therefore 1 was 
 induced to take the land, and further, in order to satisfy myself, I asked 
 for and was shewn the draft of the lease." Harbour then consented to tak(; 
 the underlease ; and, with the knowledge of Stratton, expended lari'e 
 sums of money upon the land comprised in the underlease, under the 
 expectation of the continued benefit of the restriction imposed on Stratton 
 by the covenant in the original lease. I agree with the Vice-Chancellor in 
 thinking the following to be the fair efl'ect of the evidence. Harbour in 
 negotiating with Stratton for the sublease of the property was doing so, as 
 Stratton well knew, \nth a view to build upon the land ; with tiiat view lie 
 asked a question very material to enable him to form an estimate as to the 
 value of the property. Stratton's answer is, " You need be under no 
 apprehension on the subject ; the land between that which I am selling 
 you and the sea is in my hands as lessee for this long term of years, and I 
 cannot build upon it so as to obstruct the sea view, for I am bound by my 
 lease not to do so." 
 
 Stratton having received the price of the land enhanced by the security 
 of the sea view, and having stood by while he saw Harbour erect liouses 
 on the property sublet, which were valuable, enjoying tlie sea-view, but 
 would be almost wortiiless without it, is it consistent with equity and 
 good conscience that Stratton, to make an increased profit of the land 
 which he had not sublet, should be allowed to build houses upon it 
 contrary to the covenant in his lease from Sir Ricliard Simeon so as to 
 obstruct the sea view enjoyed by the houses of Harliourl 
 
 No attempt has been made to defend the good faitii or to palliate the 
 perfidy of such a transaction. But the counsel for the appellant, in the 
 proper discharge of their duty, have, with much ingenuity and ability, 
 ofiered various technical objections to the injunction being granted on 
 equitable grounds. 
 
 First, they contend, that if there was no covenant the injunction must 
 rest on a parol promise, wliich, as it respects an interest in land, is void by 
 the Statute of Frauds. If the remedy sought did rest on contract, we
 
 840 PIGGOTT V. STRATTON. [CHAP. VITI 
 
 must bear in mind that there was a valuable consideration for the 
 promises, and tliat there has been part performance ; but I apprehend 
 tliat the injunction is to be supported on the well-established doctrine that 
 if A. deliberately makes an assertion to B., intending it to he acted upon 
 l)y B., and it is acted upon by B., A. is estopped from saying that it was 
 not true. If it turns out to be false, A. is answerable for the damage 
 which may have accrued to B. from having acted upon it, and B. is 
 entitled in respect of anything done in the belief that it was true, to object 
 to any denial of its truth by A. This doctrine is to be found in Pichard 
 V. Sears^ and a series of subsequent decisions. 
 
 But it is argued that the representation to have this effect must be 
 false, whereas all that Stratton asserted was strictly true, for when he 
 made the assertion, the lease from Sir Richard Simeon had not been 
 surrendered, and while that lease remained in force he was bound not to 
 build so as to interrupt the sea view. He only said " I am bound," and so 
 iie was until the surrender. But moralists and jurists tell us that words 
 are to be understood in Courts of justice in the sense in which the person 
 using them wished and believed that they should be understood by the 
 person to whom they were addressed. Must not Harbour have understood 
 the answer to his question to mean that Stratton was bound during the 
 currency of his lease, and that during the currency of the underlease he, 
 Harbour, would be safe from the apprehended obstruction 1 Must not 
 Stratton have wished Harbour so to understand his answer? Therefore, 
 after Harbour had executed the underlease and, Stratton looking on, 
 erected the houses on the faith of the assertion, Stratton was not at liberty 
 to deny that he was under the obligation. How it arose is immaterial, 
 and can no more oppose the injunction than if there had been an actual 
 continuing covenant legally binding upon him. 
 
 Now, it was said that all are supposed to know the law, and tliat 
 Harbour must be supposed to have known that the lease of 1845 might be 
 surrendered, and that he ought to have required a covenant from Stratton 
 not to surrender the lease, or an express covenant that on the land 
 demised to Stratton there should be no buildings erected to interrupt the 
 sea view. But, if Stratton's representation had been sincere and faithful, 
 all such precautions were unnecessary, and the business of life could not be 
 conducted if it were required that men should anticipate and expressly 
 guard against the wily devices to which the deceitful may resort. 
 
 The argument, however, chiefly relied upon for the appellant was, that 
 what Stratton said during the negotiation, in reference to the sea view, 
 results merely in the expression of intention, and that tlie case of Jorden 
 V. Money^ is a conclusive authority in his favour. I am bound to suppose 
 this case to have been properly decided by the majority of tlie members of 
 the House who voted upon it. But, in considering the doctrine of law 
 which is established, I must look to the facts which those who decided it 
 1 6 Ad. & Ell. 469. •- 5 H. Lords Cas. 185.
 
 CHAP. VIll] PIGGOTT V. STRATTON. 841 
 
 considered to be proved by tlie evidence. I must look at tliat evidence and 
 see what different inferences are to be drawn from it, and that tlie law 
 hiid down is accommodated to tiiose inferences. The majoritv of tlie 
 Lords thouglit that notliing more was proved tlian the docl.iration of a 
 present intention not to enforce tlie bond. Therefore, it is not legitimate 
 reasoning, after comparing the evidence there with the e\'idence in this 
 case, to argue that there, as much as here, a positive assertion of a fact 
 had lieen made. The doctrine there laid down and acted upon was, that 
 where a person possesses a legal right a Court of Equity will not interfere 
 to restrain him from enforcing it, though between the time of its creation 
 and that of his attempt to enforce it lie has made representation of his 
 intention to abandon it. This is the ratio decidendi, and this only is 
 binding upon us. We are not called upon to give any opinion upon the 
 point of law on whicli tlie Law Lords were divided, as to the difference 
 between a misrepresentation of a fact as it actually existed, and a 
 misrepresentation of an intention to do or to abstain from doing an act 
 wliich would lead to the damage of the party thereby induced to do an act 
 on the faith of the representation. Taking the law as tliere laid down, 
 that a mere expression of intention, although acted upon, is no ground for 
 equitable interference, we are to say whetlier in this case, considering the 
 evidence, we come to the conclusion that there was liere a mere expression 
 of an intention not to do an act. Now, according to my conclusion upon 
 the evidence, Stratton absolutely asserted that there was no power to do 
 the act, and that this act could not be done during the currency of the 
 lease. There was no room left for change of intention. It would be 
 childish to suppose tliat he meant to be understood to say that, althougli lie 
 then had no power to do this act, he might afterwards accjuirc the power 
 by surrendering the lease. He clearly gave Harbour to understand that 
 he would have no power to disturb the sea \iew during the currency of the 
 lease, and that during the currency of the lease the sea view could not be 
 disturbed. 
 
 For these reasons I am of opinion that the appeal ought to be dismissed, 
 with costs. 
 
 Lord Justice Knight Bruce. It appears to me also that the 
 plaintiff's rights against the defendant Mr. Stratton in this suit are 
 substantially or exactly the same as they would have been if tlie surrender 
 by him to his landlord, on wliich 5Ir. Stratton's counsel liave so much 
 relied, had not taken place, and without giving an opinion on tlie cjvse 
 made by the plaintiff as to oral representations, I tiiiiik the decree right, 
 on the ground of the covenant on his part contained in the underlease of 
 the 17th of December, 1851. The appeal ought certjiinly, in my opinion, 
 to be dismissed, with costs. 
 
 Lord Justice Turner. This case has teen so thoroughly exhausted 
 that I have nothing more to add than that I agree in the decision. I 
 think tlie case entirely distinguishable from Jonleii \. Mwiei/.
 
 842 HUNT V. HUNT. [chap. VIII 
 
 HUNT V. HUNT. 
 
 In Chancery, December 17, 18, 1861, January 11, 1862. 
 
 [Reported in 4 De Gex, Fisher cO Jones, 221.] 
 
 This was an appeal from the refusal of the Master of the Rolls to 
 grant an injunction to restrain proceedings on the part of the defendant 
 for tlie restitution of conjugal rights, which proceedings were in violation 
 of a covenant entered into by the defendant in a separation deed. 
 
 Tlie plaintiffs were Emily !Mary Hunt, the wife of the defendant, by a 
 next friend, and George Westrup and Robert John Westrup, the trustees 
 of the separation deed. 
 
 Tliat deed was dated the 30th of April, 1860, and made between the 
 defendant Richard Hunt of tlie first part, the plaintiff Emily Mary Hunt 
 of the second part and the plaintiffs George Westrup and Robert John 
 Westrup of the third part. It recited that unhappy differences had arisen 
 and subsisted between the defendant Ricliard Hunt and tlie female plain- 
 tiff Emily Mary Hunt, by reason whereof they had agreed at her request 
 to live separately and apart from each other for the future, and to enter 
 into the arrangement intended to be effected by the deed. The deed 
 witnessed that in pursuance of tlie said agreement on the part of the 
 defendant, and in consideration of the covenants thereinafter contained on 
 the part of the male plaintiffs, the defendant for himself, his heirs, execu- 
 tors and administrators, covenanted with the male plaintiffs, their execu- 
 tors, administrators and assigns, that it should be lawful for the female 
 plaintiff from time to time and at all times thereafter to live separate and 
 apart from the defendant in such sort and manner as if she were sole and 
 unmarried, and that the defendant would not compel nor endeavour to 
 compel her to cohabit or live with him by any legal proceeding or other- 
 wise howsoever, and that she the female plaintiff should be absolutely and 
 to all intents and purposes whatsoever freed and discharged from the 
 power, command, will, restraint, authority and government of the defend- 
 ant, and that he would not at any time thereafter, under any pretence 
 whatsoever, sue or prosecute any person or persons for receiving, harbour- 
 ing, protecting or assisting the female plaintiff, or ill-treat or use or offer 
 any violence or restraint to her person, or molest, annoy, harass, interrupt 
 or disturb her in her way of living or in her liberty or freedom of going to 
 or staying in or returning from such place or places as she should think 
 lit or otherwise howsoever; and also that it should be lawful for the female 
 plaintiff from thenceforth to have, take and enjoy to her own separate and 
 absolute use, notwithstanding her coverture, all such jewels, plate, furni- 
 ture, clothes, linen, wearing apparel, ornaments, articles and things what-
 
 CHAP. VIIl] HUNT V. HUNT. 843 
 
 soever as had been or at any time or times tliereafter should !» bequeath- 
 ed or given to her or which she miglit derive as of kin to any person oi' 
 persons, or might purchase, or wliich were or should be in any manner 
 hers or reputed hers, or wliich she should save for her separate use from 
 the provision made by the separation deed, or which she miglit derive from 
 any settlement, will or other instrument either already made or thereafter 
 to be made or otherwise, and from time to time by deed oi' will, or from 
 hand to hand to sell, give away or dispose of the same; and tiiat tlio de- 
 fendant would forthwith deliver to the female plaintiff such of the said 
 articles and things as were then in his custody, and that if she should 
 depart this life in the lifetime of the defendant the defendant would per- 
 mit her will or any writing in the nature of or purporting to be her will, 
 or a codicil or codicils tliereto, to be proved in the proper Court by the 
 person or persons to be therein named and appointed the executor or 
 executors thereof ; and that if she should not name an executor or execu- 
 tors of her will, or such executor or executors should die in her lifetime or 
 refuse to prove her said will or to act in the executorship thereof, or if she 
 should die intestate as to all or any part of the estate and effects by tiie 
 deed directed to be to or for her separate use or disposal, tiie defendant 
 would permit administration to be taken out by the person or persons who 
 ■would be entitled thereto if the defendant were then dead leaving her 
 him survi\-ing, and would permit her said estate and effects or any part 
 thereof of which she should die intestate to be distributed as tlie same 
 would be if the defendant were tlien dead leaving her him sur\-iving. 
 
 There were other covenants for the enjoyment by the wife of future 
 property coming to her by will, descent or otherwise, and for securing to 
 her the care and management of the education of the child or children with 
 whom she might be then enceinte until such child or children should have 
 attained the age of seven years (subject to limited access to such child or 
 children on the defendant's part on the footing therein detailed) and for 
 the subsequent residence of such child or children, with a proviso that in 
 case of the breach of any of the covenants thereinbefore contained the 
 defendant, his heirs, executors or administrators, would or should for 
 every such breach pay or cause to be paid to the covenantees the sum of 
 lOOZ. as and by way of liquidated damages ; and further, that the defend- 
 ant, his heirs, executors, administrators or assigns would or sliould pay or 
 cause to be paid to the trustees the annual sum of 300/. 
 
 The deed contained a covenant on the part of trustees •w\t\\ the de- 
 fendant, in consideration of the sum of 100/. paid hy him to them and of 
 the covenants thereiiibefore contained on tlie part of tlio defendant, that 
 the female plaintiff would not at any time thereafter molest or disturb the 
 defendant and should not nor would compel nor endeavour to compel iiim to 
 cohabit or live with her by any legal proceeding or proceedings or other- 
 wise howsoever, and that they would from time to time and at all times 
 thereafter iudeiunify the defendant, iiis heirs, executors, administrators
 
 844 HUNT V. HUNT. [CHAP. VIII 
 
 and his and their estates and effects of, from and against all and every the 
 debts and liabilities of tlie female plaintiff 
 
 On the 6th of April, 1861, the defendant commenced a suit against 
 the plaintiff Mrs. Hunt in the Divorce Court for the restitution of conjugal 
 rights, by a petition stating that on the 19th of March, 1860, Mrs. Hunt, 
 without any reasonable or lawful excuse, left the defendant's house, and 
 had ever since refused and still refused to return to cohabitation with him, 
 or to treat liim with conjugal afi'ection, and praying tliat Mrs. Hunt miglit 
 be ordered to return to the defendant's home and treat him with conjugal 
 affection. 
 
 Mrs. Hunt, by her answer in tlie suit for restitution, stated tlie cove- 
 nant entered into by the defendant not to compel or endeavour to compel 
 her to cohabit or live with him. 
 
 On the 22nd of May, 1861, on the motion of Mr. Hunt, the Divorce 
 Court ordered that Mrs. Hunt's answer should be reformed by striking out 
 tlie paragraph which stated tlie above covenant. 
 
 Tlie bill prayed that the defendant might be restrained by injunction 
 from prosecuting the suit in the Divorce Court, and from commencing or 
 prosecuting any other suit or legal proceeding for the purpose of compelling 
 the plaintiff Mrs. Hunt to cohabit or live with him and from otherwise 
 compelling or endeavouring to compel the last-named plaintiff to cohabit 
 or live with liim ; and that, if necessary or proper, the trusts of the deed of 
 the 30th of April, 1860, might be carried into execution and the covenants 
 performed by and under the decree and direction of the Court, and for 
 general relief. 
 
 Mr. Lloyd and Mr. Wicke7is supported tlie appeal. 
 
 The Solicitor-General (Sir A'. Palmer) and Mr. Waller were for the 
 respondent. 
 
 The following authorities were referred to : — Sanders v. Rodway ' ; 
 WUson v. Wilson'; Mortimer v. Mortimer^; Bateman v. Lady Ross''; 
 Warrender v. Warretider^ ; Leyard v. Johnson"; Westmeath v. Westmeath'' ; 
 St John \. St John"; Hope v. Rope'; Vansittart v. Vansittart^" ; Worrall v. 
 Jacob"; Frampton v. Frampton^'; Fletcher v. Fletcher^^; and 20 &■ 21 
 Vict. e. 85 '\ 
 
 The Lord Chancellor (Lord Westbury). 
 
 I do not mean on tlie present occasion finally to dispose of this appli- 
 cation ; but as I regard it as one of the most important motions, if not the 
 most important, that has yet come before me judicially, I wish to state the 
 manner in which it now strikes me. The difficulty that I feel is not so 
 much from anything inherent in the subject, as from the manner in which 
 
 1 16 Beav. 207. '- 14 Sim. 405 ; s.e. 1 H. of L. Cas. 538 ; s.c. 5 H. of 
 
 L. Cas. 40. 3 2 Hagg. Consist. E. 310. * 1 Dow. 235. « 2 01. & Fin. 527. 
 i> 3 Ves. 352. ' Jao. 126. s n Ves. 532. » 4 De G., M. * G. 328. 
 
 " 2 De G. & J. 249; s.c. 4 Jnr. (n.s.) 519. " 3 Mer. 268. 
 
 '= 4 Beav. 287, 293. 1.' 2 Cox, 99. » Sects. 7, 17.
 
 CHAP. Vm] HUNT V. HUNTi 84.') 
 
 it lias been spokon of, discussed jind troaU-d by a long scrips of judges of tlie 
 greatest eminence and autliority, during a very considerable pei-iod of time. 
 In the discussion of this matter, I think that two cautions must be 
 observed. Tlie first is not to confound tlie religious view of the question 
 with that ^•iew which alone ought to be taken in Courts sitting to ad- 
 minister justice according to civil law. I think that I detect in a great 
 deal that has been said and written upon this matter some confusion 
 arising from a desire to regard the subject in a religious rather than a civil 
 point of view. The second caution is, that we must not foi-get the differ- 
 ent state of ecclesiastical law as it existed in this country before and after 
 the Reformation; and it is more particularly to a want of the latter con- 
 sideration that I think we shall find a good deal of tlio reasoning and many 
 of the observations that have been used and extensively circulated in the 
 opinions of judges in relation to this subject are due. Before the liefonn- 
 ation, as we all know, marriage was regarded by the Church, and there- 
 fore regarded by the law, as a sacrament. It was a contract of the liighest 
 possible religious obligation. All its duties and the obligations which it 
 created were matters of ecclesiastical cognizance, and above all it is to be 
 recollected, if I am not mistaken, that the duty of cohabitation — the pri- 
 mary duty arising from the contract — was enforced by the spiritual tribu- 
 nal, by spiritual punishments, acting as they did pro salute aninue. It 
 was therefore quite correct to say anterior to the Reformation, in speaking 
 of the policy of the law, that voluntary separations were forbidden by law, 
 and that contracts made for giving eflect to voluntary separations were 
 therefore invalid, as being contrary to the policy — that is, contrary to the 
 prohibition — of the law. But then came the Reformation and tiie statute 
 of Henry VIII., which, providing for that which unhappily never took 
 place, the revision of the connuon law, enacted that tlie rules of the eccle- 
 siastical law should prevail, as far as they were not contrary to the common 
 law. The ecclesiastical law and the rules and doctrines of the Courts 
 christian were therefore subordinated to the common law, and what the 
 common law did not proliibit in tlie ordinary relations of life could no 
 longer be dealt with as an oUence l)y the ecclesiastical law. As expressed 
 by one of our older writers, the ecclesiastical law was thenceforth put sub 
 graviore lege. Then, by the common law, voluntary separations, that is, 
 the cessation by mutual agreement of the consortium vit;e of matrimony, 
 was not a tiling forbidden, prohibited or in any manner made the subject 
 of punishment. It seems to me, • therefore, impossible to say after the 
 Reformation, as a general proposition, that voluntary separations were 
 contrary to the policy of the law. It certainly was perfectly true tliat 
 inasmuch as the whole jurisdiction on the subject of marriage remained 
 vested in the Courts christian, and the power of instituting suits for tlie 
 restitution of conjugal rights was retained by those Courts, and inasmuch 
 as those Courts would not permit a contract of voluntary separation to be 
 pleaded in hav of the right to interfei-e, as they refused to countenance
 
 846 HUNT V. HUNT. [CHAP. VIII 
 
 any separation tliat had not been pronounced by the authority of a spiritual 
 Court, it was perfectly true to say tliat deeds of separation remained for- 
 bidden, that is, were treated as of no avail by the ecclesiastical law; and 
 in that sense, and in that sense alone, could it continue to be rightly said 
 that separation was contrary to the policy of the law. But there being 
 nothing to prohibit deeds of separation in the common law at a very early 
 period (how early it is impossible now to ascertain), and as the printed 
 books of precedents go back a very considerable period, and we find in 
 those books printed copies of the forms of deeds of separation, which differ 
 in little or nothing from those that are now in use, we are warranted from 
 finding a deed treated and spoken of as an ordinary contract in concluding 
 that at a very early period deeds of separation with the covenants con- 
 tained therein were recognised and treated as contracts capable of being 
 enforced at common law. There was, however, for a very long period, 
 still a great reluctance to recognise them to their full extent. That re- 
 luctance, as I have already observed, I think partook in a great measure 
 of religious principle, and was derived from religious impressions, and 
 accordingly there has been a gradual advance in the doctrine of the validity 
 of these deeds of separation. 
 
 The language of Lord Eldon undoubtedly has been very unfavourable to 
 these deeds. The decisions of Lord Eldon, save so far as he treated as 
 null and void a provision for future separation, have not been correspon- 
 dent to his language, for they have recognised the validity of these deeds. 
 The matter was brought in point of fact to an issue that has always 
 appeared to me to involve the whole subject to the fullest extent, both at 
 law and in equity, in the case of Wilson v. Wilson'^, for the peculiarity of 
 that case was this, that a Court of Equity was called upon to recognise 
 and to decree the performance of an executory agreement to enter into a 
 deed of separation, and tlierefore the most favourable opportunity was pre- 
 sented to those who could insist upon deeds of this description being con- 
 trary to the policy of the law to contend, under the protection of the 
 peculiar doctrine of this Court, that this Court ought not to be auxiliary 
 or to lend its aid in any maimer whatever to carrying such an executory 
 contract into eiFect. It might be said, that if the deed has been perfected 
 and has assumed a legal shape a Court of Equity would be bound to leave 
 it to its legal operation, but that as a suit for specific performance was an 
 appeal to the peculiar extraordinary jurisdiction of tliis Court, if there was 
 any doubt as to the validity of such a contract with regard to it being in 
 conformity with the policy of the law, it would be the duty of a Court of 
 Equity to abstain from decreeing the specific performance of any such 
 agreement. Notwithstanding that obvious view of tlie subject, the Vice- 
 Chancellor and Lord Cottenham, and ultimately the House of Lords, to 
 whose determination we are bound to bow in this matter as if to a statute 
 of the realm, have determijied that executory contracts of that description 
 1 1 H. of L. Cas. 538, and 5 H. of L. Cas. 40.
 
 CHAP. VIIl] HUNT V. HUNT. 847 
 
 could be properly carriod into effect. But tlic decision docs not rest there, 
 because it involves the mode of gixint; eilcct to the contivict, and it deter- 
 mined this, that a covenant by the liushand not to sue for the restitution 
 of conjugal rights was a usual co\enant and therefore an integral valid 
 portion of a deed of separation, and that tlie e.xecutory contract entered 
 into between the parties involved the right of the indi\idual insisting on 
 the benefit of that contract to have such a covenant inserted. Of course 
 it would be a mere mockery if a Court of justice could be supposed capable 
 of requiring a provision to be inserted in a deed which pi-o\ ision was con- 
 trary to the law or invalid by the law oi' at -variance with what is com- 
 monly denominated the policy of the law, — tliat is, considerations of sucli 
 general and universal public utility as should as matter of sound reason 
 regulate the proceedings of Courts of justice. That, however, has been 
 determined, and if we are bound by this decision, which confessedly we 
 are, there remains one single inquiry only, namely, what effect is to be 
 attributed to that covenant, that is to say, in what manner is that covenant 
 to be executed by the law'! 
 
 Now, the contention that has been made on the part of the respondent 
 in this matter, is of this nature, he says, tlie covenant is not to be con- 
 strued according to its plain import, or to have effect given to it to the 
 extent of its indisputable meaning. It imports an engagement by the 
 husband not to sue, and therefore, in truth and in reason, involves a dis- 
 ability to sue. But it is said we ought not to construe the covenant as 
 involving that disability or that obligation, but that we ought to attri- 
 bute to the whole thing a meaning which render's it I'idiculous and aljsurd, 
 namely, that the husband is left at liberty to sue, and is only to lie amerced 
 in such a pecuniary sum as shall be the measure of the damage sustiiined 
 by the other party for the breach of his covenant in instituting that suit. 
 Tt is admitted, however, by the counsel for the defendant, that if the 
 husband does sue, and if the deed be (as unquestionably it i.s) no answer 
 to the suit in the Ecclesiastical Court, there must be a decree of restitu- 
 tion, and that that decree will annul the deed. It follows, therefore, as a 
 most obvious consequence, that if the civil tribunals abstain from giving 
 effect to this contract and leave the husband to defeat it in the ujanner 
 proposed, the practical result ^^^ll be this, that the deed of separation, in- 
 stead of being a binding contract unless both parties agree in putting an 
 end to it, is a deed existing only at the pleasure of cither party. If tlic 
 husband can sue ad libitum, and there is no answer by the deed to the 
 suit, the deed is a nullity. 
 
 Whatever consideration, therefore, may have been given to the Jius- 
 band, however great may be the moral, the civil or even the religious 
 considerations for the contract, tlu; contract, if the law be in tiiis condition, 
 is utterly defeated whenever tlie iiusband cliooses to liave recourse to the 
 Ecclesiastical Court. But if this be the impotent result of the detenuina- 
 tiou in the House of Lords, then the argument was a mockery, and tlic
 
 848 HUNT V. HUNT. [CHAP. VIU 
 
 decision was a mere mockery. It is true that the infirmity of the process 
 in Courts of Common Law prevents those tribunals from giving that effect 
 to agreements of this nature which would ensure a remedy to the injured 
 party co-extensive with the nature of the contract, and therefore it was 
 that the Courts of Equity, supplying as they do in so many instances the 
 defects of the common law in not attaining to the full measure of natural 
 justice, have supplied, partly by their injunctions and partly by decrees 
 for specific performance, the infirmity and imperfect nature of the relief 
 which is given in a Court of Common Law; for it would be a preposterous 
 thing to allow the husljand with impunity to sue in the Court Ecclesiasti- 
 cal, and thereby to defeat the whole of the contract, and then to tender to 
 the injured party whose rights and stipulations had been thus derided the 
 mere compensation which pecuniary damages assessed by a jury might attbrd. 
 The practical question therefore in this state of the law which I feel 
 that I have to consider is merely this : — is this covenant such a contract as 
 consistently witli the rules and principles of a Court of Equity ought to be 
 preserved and kept from violation and breach by the injunction of the 
 Court? That is, in point of fact — in a different form of expression not 
 very accurate, but sufficiently accurate for the purpose — is this a contract 
 which by a Court of Equity ought to be specifically performed 1 Now 
 specific performance is granted where that remedy is required by the 
 nature of the contract, — that is, when the remedy given by a Court of law 
 is imperfect and inadequate to fulfil and reach the real intent and object 
 of the parties. I have no doubt therefore at present that, both vni\\ 
 reference to the reason of the tiling, namely, the necessity of this Court's 
 intervention to prevent the contract from being annulled, and with refer- 
 ence also to the mode in wliich the jurisdiction of this Court has been 
 exercised — as for example the mode in which the Court has dealt with en- 
 gagements not to carry on trade in particular districts where such engage- 
 ments have been protected by covenants and a penalty, or by a covenant 
 terminating in liquidated damages, and the manner in which the Court 
 has interfered to compel the specific performance of similar engagements 
 entered into in the articles of clerks or apprentices — I have no doubt, I 
 say, of the power of the Court or of the duty of the Court, having regard 
 to these instances of the exercise of its jurisdiction, to interfere by its 
 injunction and restrain the breach of this covenant. No other conclusion 
 can possibly be arrived at without involving ourselves in the moral ab- 
 surdity of in tei-ms pretending to declare a contract binding and refusing 
 to extend to it the only remedy and the only mode of execution that can 
 secure to the contracting parties the real benefit of the covenant, that is 
 by injunction. It has been said, on the part of the defendant, that he 
 must admit that this contract and the covenant contained in it are legal 
 and operative at law. I am therefore called upon to give the appropriate 
 remedy peculiar to this Court for the purpose of carrying into eflect a 
 confessedly legal obligation where the ordinary remedy given by a Court
 
 CHAP. Vm] HUNT i'. HUNT. 840 
 
 of Law is insufficient to efteetuato tlip real ohjcct of tlic jiurtii^s. 1 know- 
 but of one pi'inciple that is to ivtjulate the Court upon that subject. Tliat 
 principle is but a common one that oquitas sequitur legem. If this cove- 
 nant be a binding and legal obligation in a Court of Law, it is a binding 
 and legal obligation in a Court of Equity, and I am unable therefore to 
 listen eflectually to reasonings and observations founded on the sup- 
 posed policy of tlie law from whatexcr quai'tei-, in whatever language oi' in 
 whatever judgment those reasonings and observations may be found. 
 
 The long series of eminent judges wliose observations preceded tlie 
 determination of the House of Lords are not to l)e weighed in the balance 
 against the authority of that judgment, and if they are overborne or over- 
 ruled by that judgment they can no longer be cited with propriety to 
 induce the Court to refuse to give effect to the clear principle and deter- 
 mination involved in that judgment; but I see in it no departure from 
 principle, voluntary separation being no offence bj' the connuon law how- 
 ever it niay be regarded in a religious point of view. 
 
 If it is not to be regarded as a civil offence against society, then the 
 power to institute a suit for the restitution of conjugal rights is notliing 
 in the world more than a private remedy and a private right belonging to 
 the husband. The general maxim applies, "Quilibet potest renunciare 
 juri pro se introducto." I beg attention to tlie words "pro se," because 
 tliey have been introduced into the maxim to shew that no man can re- 
 nounce a riglit of wiiich his duty to the public and the claims of society 
 forbid the renunciation. But if this voluntary separation is a state of 
 tilings which by the consent of the parties may be created and created 
 without offence, tjien it falls within the scope and ambit of the ordinaiy 
 power of contracting, and there can be no difficulty upon principle or upon 
 tlie ground of the policy of the law as to the validity of such a contract. 
 
 These a priori reasonings are, however, altogether removed by authori- 
 tative decision, for if it be ever possible to iind a judgment directly antl 
 conclu.sively upon the very subject before the Court, none could be found 
 more conclusive or more cogent than the series of determinations arrived 
 at by the House of Lords. And notwithstanding the fact that some of 
 the noble and learned lords who concurred in them declined at the moment 
 to recognise the conclusion whicii they involve, yet it is impossible to 
 circumscribe that judgment by any of the words used in the speeches of 
 the learned and noble lords who addressed tlie House. That judgment 
 remains a binding law upon all tribunals; they are bound to carry it to 
 its legitimate consequences and effects, and upon its authority I at present 
 feel myself compelled to give effect to this covenant. 
 
 I was desirous of examining what had been done in the Court of 
 Divorce, for I thought it possible tliat witnesses might liave been examin- 
 ed and that the wife might have taken the chance of raising a case there, 
 and that wlien that had failed she had resorted to this Court, but I do not 
 find anytliing of tliat kind in the affidavit that has lieen laid before me, 
 F. >54
 
 .S50 HUNT V. HUNT. [CHAP. VIII 
 
 and although that affidavit may suggest matter for grave cousideration at 
 the liearing of this cause when the question of costs is to be disposed of, I 
 find no sufficient reason in that affidavit to deny to the wife the interpo- 
 sition of this Court upon tlie ground of laches or delay. 
 
 Unless, therefore, I mention tliis mattei' on the first day of next term, 
 the injunction will be granted. I reserve to myself until that time the 
 opportunity of further examining it, but I think it right to make an 
 intermediate order suspending all proceedings in the Court of Divorce 
 until the second of next term, and unless I mention the matter with a 
 different view from that which at present I am obliged to entertain, it 
 will be considered that the injunction prayed for in the bill will be granted 
 in the usual manner. 
 
 Jan. 11. The Lord Chancellor: 
 
 The importance of this case, and the great respect due to the judgment 
 of the Master of tlie Rolls, have induced me to reconsider it during the 
 recess, but I find no reason for clianging the opinion wliich I partly 
 expressed at the conclusion of the argument. The injunction now asked 
 for seems to be the necessary consequence of principles which have been 
 established by the highest authority. It is well settled in courts of law 
 that deeds of separation are good and valid. Mutual covenants by tlie 
 husband and trustees of the wife, that neither shall sue the other for the 
 restitution of conjugal rights, are properly and usually inserted in such 
 deeds of separation. If such covenants were against the policy of the law, 
 the deed of separation itself would be invalid and void ; but, on the 
 contrary, it is settled that an action may be maintained on such covenants. 
 In equity the validity of deeds of separation is also established ; and 
 further, it has been decided by the House of Lords that an agreement to 
 execute a deed of separation will be specifically performed, and that a 
 covenant not to sue for restitution of conjugal rights is a proper constituent 
 part of such a deed. 
 
 The argument before me on the part of the defendant admits the legal 
 validity of the deed, and that an action at law might be maintained for 
 breach of the covenant not to sue for restitution ; but it is contended that 
 an injunction ought not to be granted to restrain the breach of that 
 covenant. It is proved that the Court of Divorce, according to the 
 interpretation whicli, rightly or wrongly, it has put on the statute creating 
 it, will not recognise a deed of separation, or permit it to be pleaded in 
 bar of a suit for restitution. Such was the rule of the Ecclesiastical Court, 
 as is clearly shewn by Sir W. Scott in the case of Mortimer v. Mortimer '. 
 But an action at law for damages for breach of the covenant not to sue for 
 restitution is a most feeble and inadequate remedy, and unless, therefore, 
 the agreement involved in the covenant can be enforced in this court by 
 means of an injunction restraining its breach, it follows that a deed of 
 
 ■ 2 Ha"". Consist. E. 310.
 
 CHAP. VITl] nUXT r. HUNT. 8.")1 
 
 sepai-iit ion, whatever may lia\e Ijeen tlie consideration given for it, may lie 
 set aside and annulled at tlie pleasure of either party. A large sum of 
 money may have been given by the relatives of the wife to purchase lier 
 release from a brutal and dissolute Iiusband, but wlieu tlie money has lipon 
 spent, and when the means of proving his misconduct are no longer 
 available, the Iiusband may defeat tlie whole by a suit for restitution ; 
 that is to say, a legal and valid contract, for which a valuable consideration 
 was given, is defeated and avoided for want of a sufBcient ronicdy at law. 
 But that is one of the cases in which the law of this country has provided 
 that tlie larger and more effective jurisdiction of this Court may be 
 invoked. 
 
 The Master of the Rolls, in jiis elaborate judgment, considers it .settled, 
 that a covenant entered into by a husband, for sufficient consideration, by 
 whicli he undertakes to allow liis wife to live separate as a .single woman, 
 would be enforced in this Court ; and lie states it to lie settled, that a 
 covenant by the husband not to institute a suit against his wife for 
 restitution of conjugal rights is not only a legal co\eiiaiit, but one which 
 this Court would compel the husband to enter into if he has agreed to a 
 separation ; nevertheless he decides that the latter covenant cannot be 
 enforced in a Court of Equity. The law, therefoi-e, as stated in the 
 judgment, stands thus : — A covenant by a Iiusband to allow his wife to 
 live separate as a single woman will be enforced in a Court of Etjuity, but 
 a co\enant )iy a husband not to sue for restitution of conjugal rights will 
 not be enforced in a Court of Equity. It is very difficult to perceive any 
 distinction between these two engagements. The reason given by the 
 Ma.ster of the Rolls is expressed in the following words : — " Ecpiity has no 
 power of interfering with the questions exclusively relating to the conduct 
 of husband and wife towards each other ; the law in this respect is solely 
 and exclusively administered by the Ecclesiastical Court, the powers of 
 which are now by act of Parliament vested in the Divorce Court. This 
 Court cannot determine whether a husband ought to maintain his wife, or 
 whether they should live apart, or continue living together, or, if living 
 apart, whether they ouglit to remain apart or return to cohabitation. No 
 conduct of the parties them.selves, no fraud on the part of either of them, 
 will confer on this Court such a jurisdiction ; it lies exclusively within the 
 cognizance of the Court of Divorce, which Court must be treated as being 
 best cognizant of the principles of law and justice which ought to be 
 applied, and which ought to regulate such cases." Those are the words of 
 his Honour; and in another place his Honour observes upon the importance 
 of a Court of Equity not taking upon itself any part of the jurisdiction of 
 the Court of Divorce. But, with great respect to tiie Master of the Rolls, 
 these oliservations appear to involve a misapprehension of the functions 
 discharged by this Court when it restrains a husband from violating the 
 covenant for which he has received a \aluable consideration. In granting 
 such an injunction, this Court neither forms iinr expresses any judicial
 
 852 HUNT II. HUNT. [CHAP. VIII 
 
 opinion upon the conduct of tlic husband and wife towards each other, nor 
 does it determine anything as to the propriety' of their remaining apart, or 
 the duty of returning to cohabitation. If, indeed, the doctrines of tlie 
 Ecclesiastical Courts were also the rules of the common law, the observa- 
 tions of tlie Master of the Rolls would be well founded, but then deeds of 
 separation would be illegal and \'oid. In Mortimer v. Mortimer\ Sir W. 
 Scott says, "This Court" (that i.s, the Ecclesia.stical Court) "considers a 
 private separation as an illegal contract, implying a renunciation of 
 stipulated duties — a dereliction from those mutual offices which the parties 
 are not at liberty to desert — an assumption of a false character in botli 
 parties, contrary to the real status personte, and to the obligation which 
 both of them have contracted, in the siglit of God and man, to live together 
 till death do them part, and on which the solemnities both of civil society 
 and of religion have stamped a binding authority, from which the parties 
 cannot release themselves by any private act of tlieii- own, or for causes 
 which the law itself has not pronounced to be sufficient, and sufficiently 
 proved. The Courts, therefore, to which the law has appropriated the 
 right of adjudicating upon the nature of the matrimonial contract have 
 uniformly rejected such covenants as insignificant in a plea of bar, and 
 leave it to other Courts to enforce them, so far as they deem proper, upon 
 a more favourable view, if they entertain it, of their consistency with the 
 principles of the matrimonial contract." 
 
 Such is the doctrine of the Ecclesiastical Courts; but the relative 
 obligations of fulfilling the duties of the marriage contract, which is the 
 basis of this ecclesiastical doctrine, the common law leaves to the conscience 
 of the parties concerned. It regards a deed of separation as any otlier 
 legal contract. If the covenant of the husband not to sue for restitution, 
 which is a release of the right to compel cohabitation, be founded upon a 
 valuable consideration, an action may be maintained upon it as upon any 
 other legal covenant. A Court of Equity, in regarding these covenants, 
 cannot take a higher or diflferent ground ; it is in this respect bound to 
 follow the law ; and the remark that a Court of Equity, in enforcing the 
 covenant would be taking on itself the jurisdiction of the Court of Divorce, 
 is no more applicable to this Court, when granting its injunction, than it 
 would be to a Court of law when supporting an action on the covenant. 
 
 The same ground was taken by the judges at common law in the early 
 period of the jurisdiction of this Court, when tliey protested against the 
 light of a Court of Equity to grant injunctions to stay proceedings at law. 
 An injunction is directed against the individual, and is not a prohibition 
 addressed to the Court ; it admits the jurisdiction of the Court. 
 
 There is anotlier ground stated by his Honour, namely, that there is no 
 mutuality of remedy, inasmuch as a similar injunction would not be granted 
 to restrain the wife if she instituted a suit for restitution. This, however, 
 is to assume tlie question at issue. That this Court lias jurisdiction to 
 grant an injunction against a feme covert, to restrain hor from suing in 
 " 2 Hagg. Consist. R. 310.
 
 CUAP. VIU] lillWEN r. IIAIJ.. 853 
 
 tlie Ecclesiastical Court for restitution of conjugal rights, is proved l>y 
 tlie judgment and oidei- of Lord Hardwicke in tlie case of Jlilt v. 
 Tiirni'.r'. But it is unnecessary to decide tliis question, for I am of 
 opinion tliat it is not competent to the liusband, who is the defendant here, 
 to avail himself of the objection if it bo well founded ; he has accepted tlie 
 covenants of tlie trustees, wliich are expressly and especially declared to be 
 the consideration for his own covenants. The theory of a deed of separa- 
 tion is, that it is a contract between the husband and wife thi-ough the 
 intervention of a tliird party — namely, the trustees; and tlie husband's 
 contract for the benefit of the wife is supported by the contract of the 
 trustees on her behalf. There is no room, tlierefore, for the objection of 
 ^\■ant of mutuality ; it is excluded as well by the words as by the spirit 
 and intent of the instrument. 
 
 For these reasons, with great respect to his Honour, 1 cannot concur in 
 liis conclusion. I revcr.se his order, and grant the injunction which is 
 prayed. 
 
 BOWEN V. HALL AND OTHERS. 
 
 In tue Court of Appe.^l, February 5, 1881. 
 
 [Keportid in Law Reports, G Queen's Beneh Division, 'A'ii.] 
 
 Action as against the defendants Hall and Fletcher for wrongfully 
 enticing away and keeping the otiier defendant Pearson from the plaiiitill's 
 employment, and for wi-ongfully receiving and harbouring him after notice 
 of his being the servant of the plaintifl', and as against the said defendant 
 Pearson for unlawfully and against the will of the plaintiff departing from 
 the service of the plaintiff. The facts, so far as necessary for this report, 
 are these : — 
 
 The plaintiff carried on the business of brickniaker, at the Clattershall 
 Fire Brickworks in Staffordshire, and in June, 1877, the defendant 
 Pearson, wlio was a bath and brickmaker, entered into a written agree- 
 ment with the plaintiti', of which the following is a copy : — 
 
 " Clattershall Fire Brickworks, Stourbridge, 
 "June 18th, 1877. 
 
 "I, George Pear.son, of Stamber Hill, near Stourbriilge, hereby agree 
 and undertake, for the consideration of the prices below named, to find all 
 labour for the whole manufacture in a workmanlike manner of best 
 ((uality white glazed bricks and baths (with exception of hooping tlie 
 baths and preparing the clay mass), in such quantities as you require and 
 when you require, and deliver any where they may be required on tlie 
 above premises, the said quality to be quite equal to sample supplied and 
 
 I 1 Atk. 515.
 
 854 BOWEN V. HALL. [CHAP. VIII 
 
 marked , ami the said prices to be subject to the standard prices of 
 
 the trade for tlie manufacture of the same. 
 
 " Prices of bricks, 9" x ii" x 3" : — 
 
 " Perfect single sides, ends or flats, in quantities up to 10,000 per week, 
 50s. per 1000. 
 
 "Perfect single sides, ends or flats, in quantities from 10,000 to 15,000 
 per week, 47s. 6d. per 1000. 
 
 "Perfect single sides, ends or flats, in quantities from 15,000 and 
 upwards per week, 45s. per 1000. 
 
 "Perfect glazed on two surfaces, 20s. per 1000 extra. 
 „ „ three „ 30s. „ „ 
 
 "Seconds of the above from the kiln, 25s. per 1000. 
 
 "Waste ,, „ „ 7s. Qd. „ 
 
 " Body and glaze for single sides, ends or flats, ~j 
 
 4s. per 1000. I I also agree to 
 
 „ „ two surfaces, 8s. per 1000. i tind. 
 
 „ ,, three surfaces, 12s. per 1000. j 
 
 " Prices of baths 5 ft. 8 ins. long : — 
 
 " Perfect baths, II. each. 
 
 " Second baths, 10s. each. 
 
 " Waste baths, nothing. 
 
 " I also agree to And body and glaze for baths at 2s. each. 
 
 " I also agree to load carefully into trucks, when required, bricks 
 at Is. &d. per 1000. Baths, packed, loaded, and fixed into trucks at 
 (')d. each ; also to do any day work when required at 5s. per day of nine 
 hours. 
 
 " I also agree not to engage myself to any one else for a term of five 
 years. 
 
 " Terms of Payment. 
 
 " Fifty per cent, of the cost of making, to be paid when the goods are 
 in the kiln, and the remainder to be paid wlien tiie goods are delivered on 
 the bank. 
 
 " I, Edward Bowen, do hereby agree to the foregoing conditions, also 
 to supply clay for the manufacture of the said goods in a proper state, 
 also to tind all materials (with the exception of body and glaze) and 
 tools, and not engage any one else for the same work for a term of five 
 years. 
 
 (Signed) " Edward Bowen. 
 "George Pearson." 
 
 The plaintifl' alleged that the manufacture of white-glazed bricks and 
 baths according to the said sample was a secret known to the defendant 
 Pearson and only a few others, and that the defendant Hall, who was a 
 manufacturer of white-glazed bricks and baths in the neighbourhood of the 
 plaintifl', did not know of this method of manufacture which Pearson 
 used, and that therefore the bricks and baths he manufactured were in- 
 ferior to those manufactured by Pearson on account of the plaintifl". The
 
 CHAT. VUl] UOWEN V. UALl. Soj 
 
 couiphiiut of the pkiintili; ami fur whiuh tliis action vas broujjlit, was, 
 that in May, 1878, the defendants Hall and Fletcher (the latter being 
 Hall's manager) wrongfully induced Pearson, contrary to his said agree- 
 ment with the plaintiti', to depart from the exclusive service of the 
 plaintiff", and to manufacture on account of the defendant Hall glazed 
 bricks and baths such as he had contracted to manufacture for the, 
 ]ilaintitf. 
 
 The plaintiff' claimed damages, not against all the defendants, but 
 against only the two defendants Hall and Fletcher. He also claimed an 
 injunction to restrain these defendants from employing the defendant 
 Pearson to do work for them at brick-making or glazing, and he claimed 
 an injunction to restrain the defendant Pearson from engaging himself to 
 the defendants Hall and Fletcher until the expiration of jiis said contract 
 of service with the plaiutilT. An interim injunction in the terms claimed 
 was granted by Field, J., in September, 1878, as against all the de- 
 fendants. 
 
 The action was tried before Manisty, J., at the 8tali'ordsliire summer 
 assizes of 1879, when tiiat learned judge held that there was no evidence 
 to enable the plaintiff" to maintain his action against the defendants Hall 
 and Fletcher, and he therefore directed a verdict to be entered for those 
 defendants, and as regarded the defendant Pearson, the learned judge was 
 of opinion that, as that defendant had not acted nor threatened to act 
 contrary to the interim injunction, there was notiiiug to justify making 
 such injunction perpetual. The plaintiff afterwai'ds apjilied for and ob- 
 tained a rule nisi against all the defendants for a new trial. The Queen's 
 Bench Division made such rule absolute as against the defendants Hall 
 and Fletcher, but it discharged the rule as to tiie defendant Pearson. 
 The defendants Hall and Fletciier appealed to this Court against the 
 order for a new trial, and there was a cross appeal by the pl.iintiff' against 
 the order discharging the rule as to the defendant Pearson. 
 
 Nov. 3, 1880. Je!/, Q.C. (./. 0. Griffiths, Q.C., with him), for the de- 
 fendants Hall and Fletcher. 
 
 A. T. Lawrence, for the defendant Pearson. 
 
 11. Matthews, Q.C, and Anstie, for the plaintiff". 
 
 During the argument the Court expressed themselves to be .satisfied 
 that there was evidence to go to the jury as against all the defendants. An 
 unsuccessful attempt was made by counsel for the defendants to distinguisli 
 the present case from that of Lumley v. 6'ye', on tiie ground that tiiere 
 was nothing in the terms of the contract between the plaintiff' and Pearson 
 to require the personal sei-vices of tiie latter. On the part of the plaintiff" 
 it was contended that there existed between Pearson and the plaintiff' 
 the strict relationship of master and servant, but tiiat if not, then the case 
 came within the authority of Lumley v. Gye\ It becanie )iecessary there- 
 fore to determine whether the judgment of the majority of the judges who 
 
 1 2E.CV-I;. 210; 22 L.J. (Q. B.)10;i.
 
 S56 BOWEN V. HALL. [CHAP. VIII 
 
 decided Lumley v. Gyc\ or that of the dissenting judge (Coleridge, J.) was 
 to be supported by a Court of Appeal. On this point, the Court took time 
 to consider its judgment, and counsel in the meanwhile were to be at 
 liberty to furnish the Court with a reference to any further authority bear- 
 ing on the decision in that case''. 
 
 Cur. ado. vii!t. 
 
 Feb. .5. Brett, L. J. The Lord Chancellor agrees with me in the 
 judgment I am about to read, and it is to be taken therefore as the judgment 
 of the Lord Chancellor as well as of myself. 
 
 In this case, we were of opinion at the hearing, that the contract was 
 one for personal service, though not one which established strictly for all 
 jiurposes the relation of master and servant between the plaintiff and 
 Pearson. We were of opinion that there was evidence to justify a finding 
 that Pearson had been induced by the defendants to break his contract of 
 service, that he had broken it, and had thereby, in fact, caused some injury 
 to the plaintiff. We were of opinion that the act of the defendants 
 was done with knowledge of the contract between the plaintiff and 
 Pearson, was done in order to obtain an advantage for one of the de- 
 fendants at tlie expense of the plaintiff, was done from a wrong motive, 
 and would therefore justify a finding that it was done in that sense 
 maliciously. There remained nevertheless the question, whether there was 
 any evidence to be left to the jury against the defendants Hall and 
 Fletcher, it being objected that Pearson was not a servant of the plaintiff. 
 The case was accurately within tlie authority of the case of Lxi,iideij v. 
 Cr'ye'. If that case was rightly decided, the objection in this case failed. 
 The only question then which we took time to consider was whether 
 the decision of the majority of the judges in that case should be supported 
 in a Court of Error. That case was so elaborately discussed by tlie learned 
 judges who took part in it, that little more can be said about it, than 
 whether, after careful consideration, one agrees rather witli the judgments 
 of the majority, or with the most careful, learned, and able judgment of 
 Mr. Justice Coleridge ^ The decision of the majority will be seen, on a 
 careful consideration of their judgments, to have been founded upon two 
 chains of reasoning. First, that wherever a man does an act whicli in 
 law and in fact is a wrongful act, and such an act as may, as a natural 
 and probable consequence of it, produce injury to another, and which 
 in the particular case does produce such an injury, an action on the 
 case will lie. This is the proposition to be deduced from the case of 
 Ashhy V. Wldte*. If these conditions are satisfied, the action does not the 
 
 1 2E. &B.216; 22L. J. (Q.B.)4C3. 
 
 = The following is a list of the authorities with which the Court was afterwards 
 furnished, viz.: Evans v. Walton (Law Kep. 2 C. P. G1.5); CatUc v. Stockton Watcrivorks 
 Company (Law Eep. 10 Q. B. 453); Hashing v. Hoi/ster (16 Amer. Eep. 780); Bvrgess v. 
 Carpenter (16 Amer. Eep. 643); Bixby v. Bunlap (22 Amer. Kep. 475) and note at the 
 end of that case; Bryan v. Slate (44 Georgia, 328); and Walter y. Cronin (107 Mass. 
 555). 
 
 '^ Sec this judgment post p. 859. Ed. * 1 Sm. L. C. 8th cd. p. 264.
 
 CHAT. VIII.] BOWKX i'. IIAI.I.. S.j7 
 
 less lie because the nutuiiil and probable consequence of tlie act complained 
 of is an act done by a third person : or because such act so done by the 
 third person is a breach of duty or contract by liini, or an act illegal on 
 his part, or an act otherwise imposing an actionable liability on him. It 
 has been said that the law implies that the act of the third party, being 
 one which he has free will and power to do or not to do, is his own wilful 
 act, and therefore is not the natural or probable result of the defendant's 
 act. In many cases that may be so, but if the law is so to imply in every 
 case, it will be an implication contrary to manifest truth and fact. It has 
 been said that if the act of the third person is a breach of duty or con- 
 tract by him, or is an act which it is illegal for him to do, the law will not 
 recognise that it is a natural or proliable conseciuenco of the defendant's 
 act. Again, if that were so held in all cases, the law would in some refuse 
 to recognise what is manifestly true in fact. If the judgment of Lord 
 Ellenborough in Vicars v. Wilcockg' requires this doctrine for its support, it 
 is in our opinion wrong. 
 
 We are of opinion that the propositions deduced above from Asldij v. 
 White' are correct. If they be applied to such a case as Lunilei/ v. Gye'', 
 the question is whether all the conditions are by such a case fulfilled. The 
 first is that the act of the defendants which is complained of nnist be an 
 act wrongful in law and in fact. Merely to persuade a person to break his 
 contract, may not be wrongful in law or fact as in the second case put by 
 Coleridge, J.'' But if the persuasion be used for the indirect purpose of 
 injuring tlie plaintiff, or of benefiting the defendant at the expense of the 
 plaintiff, it is a malicious act which is in law and in fact a wrong act, and 
 therefore a wrongful act, and therefore actionable act if injury ensues 
 from it. Wf^ think that it cannot be doubted that a malicious act, sucli 
 as is above described, is a wrongful act in law and in fact. The act com- 
 plained of in such a case as Lumley v. Gye^, and which is complained of in 
 the present case, is therefore, because malicious, wrongful. That act is a 
 persuasion by the defendant of a third person to break a contract existing 
 between such third person and the plaintiff. It cannot be maintained 
 that it is hot a natural and probable consetiuence of that act of persuasion 
 that the third person will break his contract. It is not only the natural 
 and probable consequence, but by the terms of the proposition which 
 involves the success of the persuasion, it is the actual consecpience. Unless 
 there be some technical doctrine to oblige one to say so, it seems impossible 
 to say correctly, in point of fact, that the breach of contract is too remote 
 a consequence of the act of the defendants. The technical objections 
 alluded to above have been suggested as the consequences of the judgment 
 in Vicars v. Wilcocks\ But that judgment when so used or relied on 
 seems to us to be disapproved in the opinions given in the House of Lords 
 in Lynch \. Knir/hi'', and seems to us when so used to bo unreasonable. 
 
 1 8 East, 1 ; 2 Sm. L. C. Htli cd. p. 5ol. ■ 1 Sm. L. C. 8th etl. p. 261. 
 
 3 3 E. & B. 21B ; 22 L. J. (Q. B. > i63. * 2 E. & B. at p. 217. 
 
 5 9 U. L. C. r,77.
 
 S.5S BOWEN V. HALL. [cilAP. VUI 
 
 In the case of Lumley v. 6^/e', and in the present case, the third condition 
 is fulfilled, namely, that the act of the defendant caused an injury to tlie 
 plaintift', unless again it can be said correctly that the injury is too remote 
 from the cause. But that raises again tlie same question as has been just 
 dismissed. It is not too remote if the injury is the natural and probable 
 consequence of the alleged cause. That is stated in all the opinions in Lynch 
 V. Knhjht'. The injury is in such a case in law as well as in fact a natural 
 and pi-obable consequence of the cause, because it is in fact the con- 
 sequence of the cause, and there is no technical rule against tlie truth 
 being recognised. It follows that in Lumley v. 6'ye' and in the present 
 case all the conditions necessary to maintain an action on the case are 
 fulfilled. 
 
 Another chain of reasoning was relied on by the majority in Lumley v. 
 G-'ye', and powerfully combated by Coleridge, J. It was said that the 
 contract in question was within the principle of the Statute of Labourers, 
 that is to say, that the same evil was produced by the same means, and 
 tliat as the statute made such means when employed in the case of master 
 and servant, strictly so called, wrongful, the common law ought to treat 
 similar means employed with regard to parties standing in a similar 
 relation as also wrongful. If, in order to support Lumley v. Gye^, it had 
 been necessary to adopt this proposition, we should have much doubted, to 
 say the least. The reasoning of Coleridge, J., upon the second head of his 
 judgment seems to us to be as nearly possible, if not quite, conclusive. 
 But we think it is not necessary to base the support of the case upon this 
 latter proposition. We think the case is better supported upon the first 
 and larger doctrine. And we are therefore of opinion that the judgment 
 of the Queen's Bench Division was correct, and tliat the principal appeal 
 must be dismissed'. 
 
 Lord Selborne, L. C. I have now to add the conclusion to which this 
 Court has unanimously come with regard to the cross-appeal by the 
 plaintiff against the defendant Pearson, who succeeded before the Queen's 
 Bench Division in getting tlie rule for a new trial discharged or re- 
 fused as to himself, while it was made absolute as to the other de- 
 fendants. 
 
 Pearson was the workman, who, having a special knowledge or skill 
 in the glazing of bricks, which gave a peculiar and exceptional value to 
 his services, contracted with the plaintiff to work for him exclusively if 
 required so to do, during a certain period of time (the plaintiff being 
 reciprocally bound to employ no other person in the same kind of work 
 during the same period), and was afterwards induced by the other de- 
 fendants to break that contract. The relief asked against him in the 
 action was injunction ; an interim injunction was granted before the 
 trial ; and the case went down for trial against all the defendants at the 
 same time and upon the same issues of fact. The effect of leaving the 
 
 ' 2 E. & B. 216 ; 22 L. J. (Q. B.) 403. - '.) H. L. C. 577. 
 
 ^ The judgment of Lokd Colekidue, C. J., is omittLd. Eu.
 
 CUAl'. Via] BUWEN i: HALL. 859 
 
 verdict to stand in Pearson's favour would be to entitle liini to judfrnient 
 in the action, wliich cannot be riglit if liis contract witli the plaintirt' was 
 broken in the manner alleged; and if upon the evidence given at tlie trial 
 that question of fact could properly be now detennined in Pearson's 
 favour, it is impossible that upon the same evidence it could also be riglit 
 to order a new trial as against the other defendants. 
 
 We think, therefore, that the plaiutift's appeal nni.st be allowed, and 
 that there ought to be a new trial as to all the defendants. But as, when 
 the proper time comes to give final judgment, the consequences of a verdict 
 for tlie plaintiff will not necessarily be the same as to Pearson, and as to the 
 other defendants, we think that the judge at the trial ought to give sucli 
 directions to the jury as will enable the Court, if the plaintill" should 
 succeed, to deal with the particular case of this defendant as may be just. 
 For this purpose, they ought to be directed in the event of a \erdict for 
 the plaintiff', to find specially the amount of damages which they tiiink 
 ought to be awarded against Pearson, first, in the event of the Court 
 thinking his case a proper one both for an injunction and for damages ; 
 and, secondly, in the event of the Court thinking it a proper case for 
 damages only and not also for an injunction. [See Lord Cairns' Act (21 
 & 22 Vict. c. 27), s. 2, and the Judicature Act, 1873 (36 .k 37 Vict. c. GG), 
 s. 2, sub-s. G ; and s. 76.] 
 
 The cases of Hills v. CrolV, Dietrkhsen v. Cabburn", and Lnmley v. 
 ^yacjner', and the authorities in equity as to covenants in restraint of trade 
 within certain limits of time or place, may possibly require to be considered, 
 before the case as to Pearson, (in the event of a verdict being found against 
 him), is finally disposed of. 
 
 Appeal of defendants Hall and FletcJier dismissed ; cross-appeal 
 of plaintiff as to defendant Pearson allowed. 
 
 [The following is the judgment of Mr. Justice Coleridge in Liimh-y v. 
 Gyp, reported in 2 Ellis & Blackburn, 244, and 22 Law Journal (Q. B.) 
 476. Ea] 
 
 Coleridge, J. The plaintiff in this case, by the first count of his declaration, 
 shapes his case in substance as follows : ho alleges a contract made between him- 
 self and Johanna Wagner for her to perform in his theatre in oix;ra.s for a specified 
 time, i.e. from the 15th April to the 15th July, ou certain tcrm.s, and, among 
 these, one that she was not during the time to sing or use her talents elsewhere 
 than in his theatre without his witten authority. He then complains that the 
 defendant, knowing the premises, and maliciously intcn.ling to injiire him and to 
 prevent Johanna Wagner from performing according to her contract, whilst the 
 agreement was in full force, but before the commencement of the term, on the 
 8th April, enticed and procured her to make default in singing or performing at 
 1 2 PbiU. GO; 1 D. M. A G. G27, n. = •-' PhiU. 52. ^ 1 1). M. & li- f.Ol, (-.27.
 
 SGO JUDGMENT OF COLERIDGE, J. [CHAP. VIII 
 
 the theatre, and to depart from and abandon her contract, against his will and 
 without his written authority, by means of which enticement and procm-ement 
 she unlawfully and wTongfully wholly refused to perform her contract, and he 
 sustained special damage. The 2nd count applies to an enticement, after certain pro- 
 ceedings in equity, to Johanna Wagner to continue her default for the residue of 
 the term. The 3rd count states that Johanna Wagner was hired and engaged by 
 the plaintiff to sing and perform at his theatre, for a certain time, as his dramatic 
 artiste for reward, and had become and was such di'amatic artiste, and complains 
 that defendant, maliciously intending to injm'e him, enticed and procured her to 
 depart from and out of his said employment. These counts are demurred to ; 
 and the demurrers raise the questions, Whether an action will lie against a third 
 l^arty for maliciously and injuriously enticing and procuring another to break 
 a contract for exclusive service as a singer and theatrical performer : in the first 
 place, while the contract is merely executory ; in the second, after it is in covirse 
 of execution ? I make no distinction between the counts, and am of opinion that 
 it will not in either case, and that the defendant is entitled to our judgment 
 generally. 
 
 In order to maintain this action, one of two propositions must be maintained ; 
 either that an action will lie against any one Viy whose persuasions one party to 
 a contract is induced to break it to the damage of the other party, or that the 
 action, for seducing a servant from the master or persuading one who has con- 
 tracted for service from entering into the employ, is of so wide apphcation as to 
 cmbi'ace the case of one in the position and profession of Johanna Wagner. 
 After much consideration and enquiry I am of opinion that neither of these 
 propositions is true ; and they are both of them so important, and, if established 
 by judicial decision, will lead to consequences so general, that, though I regret the 
 necessity, I must not abstain from entering into remarks of some length in 
 support of my view of the law. 
 
 It may simplify what I have to say, if I first state what are the conclusions 
 which I seek to establish. They are these : that in respect of breach of contract 
 the general rule of our law is to confine its remedies by action to the contracting 
 parties, and to damages directly and proximately consequential on the act of him 
 who is sued ; that, as between master and servant, there is an admitted excep- 
 tion; that this exception dates from the Statute of Labourers, 23 Edw. III., and 
 both on principle and according to authority is hmited by it. If I am right in 
 these positions, the conclusion will be for the defendant, because enough appears 
 on this record to shew, as to the first, that he, and, as to the second, that Johanna 
 Wagner, is not within the limits so drawn. 
 
 First then, that the remedy for breach of contract is by the general iiile of 
 our law confined to the contracting parties. I need not argue that, if there be 
 any remedy by action against a stranger, it must be by action on the case. Now, 
 to found this, there must be both injury in the strict sense of the word (that is a 
 wrong done), and loss resulting from that injury : the injury or wrong done must 
 be the act of the defendant ; and the loss must be a direct and natural, not a 
 remote and indirect, consequence of the defendant's act. Unless thci-c be a loss
 
 CHAP. Vm] LUMLKY i'. OYE. 8GI 
 
 thiis Jircctly aud proximately connected with the act, the mere intention, or 
 even the endeavour, to jiroduce it will not found the action. The existence of 
 the intention, that is the malice, will in some cases be an essential ingredient in 
 order to constitute the wrongfulness or injiu'ious natui'e of the act; but it will neither 
 supply the want of the act itself, or its Inu'tful conscfpience : however complete the 
 injuria, and whether with malice or without, if the act be after all sine damno, 
 no action on the case will lie. The distinction between civil and criminal pro- 
 ceedings in this respect is clc<ar and material ; and a recollection of the different 
 objects of the two will dispose of any argument founded merely on the allegation 
 of malice in this declaration, if I shall be fomid right in thinking that the 
 defendant's act ha-s not been the direct or proximate cause of the damage which 
 the plain tiflf alleges he has sustained. If a contract ha.s been made between A. and B. 
 that the latter should go supercargo for the former on a voyage to China, and C, 
 however maliciously, persuades B. to break his contract, but in vain, no one, I 
 suppose, would contend that any action would lie against C. On the other hand, 
 suppose a contract of the same kind made between the same jmrtics to go to 
 Sierra Leone, and C. lU'gently aud bonS, fide advises B. to abandon his contract, 
 which on consideration B. does, whereby loss results to A. ; I think no one will 
 be foimd bold enough to maintain that an action would lie against C. In the 
 first case nj loss has resulted ; the malice has been ineffectual ; in the second, 
 though a loss has resulted from the act, that act was not C.'s, but entirely and 
 exclusively B.'s own. If so, let mahce be added, and let C. have persuaded, not 
 bona fide but mali fide and maUciously, still, all other circiunstances remaining 
 the same, the same rea.son applies ; for it is malitia sine damno, if the hurtful act 
 is entirely and exclusively B.'s, which last circumst;ince cannot be affected by the 
 presence or absence of malice in C. Thus far I do not apprehend much 
 difference of opinion : there would be such a manifest absurdit}' in attempting 
 to trace up the act of a free agent breaking a contract to all the advisers who 
 may have influenced his mind, more or less honestly, more or less powerfidly, 
 and to make them responsible civilly for the consequences of what after all is his 
 own act, and for the whole of the hurtful consequences of which the law make.i 
 him directly and fully responsible, that I believe it will never be contendetl 
 for seriously. This was the principle on which Lord Kenyon proceeded in Ashley 
 v. Harrison^. There the defendant libelled Madame Mara; the plaintiff alleged 
 that, in consequence, she, from api)rehension of being hissed and ill trcatetl, 
 forbore to sing for him, though engaged, whereby he lost great profits. Lord 
 Kenyon nonsuited the plaintiff: he thought the defendant's act too remote 
 from the damage assigned. But it will be said that this declaration charges 
 more than is stated in the case last supposed, because it alleges, not merely 
 a persuasion or enticement, but a procuring. In Winsmore v. Grecnbani^ 
 the same word was used in the first count of the declaration, which alone is 
 material to the jiresent case ; and the Chief Justice, who relied on it, and 
 distinguished it from enticing, defined it to mean "persuading with efl'ect;" and 
 he held that the husband might sue a stranger for persuading with effect his wife 
 1 Pnake's 1 N. P. C. 194 ; s.c. 1 Esj). N. P. C. 18. -' Willcs. r,77.
 
 SG2 JUDGMENT OF COLERIDGE, J. [CHAP. VIII 
 
 to do a wrongful act directly hurtful to himself. Although I should hesitate to be 
 bound by every word of the judgment, yet I am not called on to question this 
 definition or the decision of the case. Persuading with effect, or eft'ectually or 
 successfully persuading, may no doubt sometimes be actionable — as in trespass 
 — even where it is used towards a free agent : the ma3dms, qui facit per alium 
 faoit per se, and respondeat superior, are unquestionable ; but, where they 
 apply, the wrongful act done is properly charged to be the act of him who has 
 procured it to be done. He is sued as a principal trespasser, and the damage, 
 if proved, flows directly and immediately from his act, though it was the hand 
 of another, and he a free agent, that was employed. But, when you apply the 
 term of effectual persuasion to the breach of a contract, it has obviously a 
 different meaning ; the persuader has not broken and could not break the 
 contract, f(jr he had never entered into any ; ho cannot be sued upon the con- 
 tract ; and yet it is the lireach of the contract only that is the cause of damage. 
 Neither can it be said that in breaking the contract the contractor is the agent of 
 Iiira who procures him to do so ; it is still his own act ; he is principal in so 
 doing, and is the only principal. This answer may seem technical ; but it reall}' 
 goes to the root of the matter. It shews that the procurer has not done the 
 hurtful act; what he has done is too remote from the damage to make him 
 answerable for it. The case itself of Winsmore v. Oreenhank'^ seems to me to 
 have little or no bearing on the present : a wife is not, as regards her husband, a 
 free agent or separate person ; if to be considered so for the present purpose, she 
 is rather in the character of a servant, with this important peculiarity, that, if 
 she be induced to withdraw from his society and cohabit with another or do him 
 any wrong, no action is maintainable by him against her. In the case of criminal 
 conversation, trespass lies against the adulterer as for an assault on her, however 
 she may in fact have been a willing party to all that the defendant had done. 
 No doubt, therefore, effectual persuasion to the wife to withdraw and conceal 
 herself from her husband is in the eye of the law an actual withdrawing and con- 
 cealing her ; and so, in other counts of the declaration, was it charged in this 
 very case of Winsmore v. Grccnhank '. A case explainable and explained on the 
 same principle is that of ravishment of ward. The writ for this lay against 
 one who prociu-ed a man's ward to depart from him ; and, where this was urged 
 in a case hereafter to be cited 2, Judge Hani-ford'^ gives the answer: the reason 
 is, he says, because the ward is a chattel, and vests in him who has the right. 
 None of this reasoning applies to the case of a breach of contract: if it does, 
 I should be glad to know how any treatise on the law of contract could be com- 
 plete without a chapter on this head, or how it happens that we have no decisions 
 upon it. Certainly no subject could well be more fruitful or important; im- 
 portant contracts are more commonly broken with than without persuaders or 
 procurers, and these often responsible persons when the principals may not be so. 
 I am aware that with respect to an action on the case the argument prima} ini- 
 
 ' Willes, 577. '^ Mich. H H. IV., fol. 23 A. pi. 4G, post, p. 865. 
 
 •' William HanUford, Justice of the Common Pleas in 1398, afterwards, in 1414 
 (1 H. v.). Chief Justice of EiiRliinrl.
 
 fUAP. VI 1 1] I.rMLEV V. GYK. sH:! 
 
 pressioiiis is sometimes of no weight. If tlio circumstjuiccs luidor wliiuli tlic 
 action would be brought have not l)eforc arisen, or arc of rare occurrence, it will 
 be of none, or only of inconsiderable weight ; but, if the circumstances have l)ecn 
 common, if there has been frequently occasion for the action, I apprehend it is 
 important to find that the action has yet never l)ccn tried. Now we find a 
 plentiful supply both of text and decision in the case of seduction of servants : 
 and what inference docs this lead to, contrasted with the silence of the books and 
 the absence of decisions on the case of breach of ordinary contracts f Let this 
 too be considered : that, if by the common law it was actionable eft'ectually to 
 jiersuade another to break his contract to the damage of the contractor, it would 
 seem on principle to be ecpially so to uphold him, after the breach, in continuing 
 it. Now upon tliis the two conflicting cases of Adams v. Uafeald^ and Blah: v. 
 Lanyon"^ are worth considering. In the first, two Judges against one decided 
 • that an action does not lie for retaining the servant of another, lailcss the de- 
 fendant has first procured the servant to leave his master ; in the second, this was 
 overruled ; and, although it was taken as a fact that the defendant had hired the 
 servant in ignorance and, as soon as knew that he had left his former master 
 with work imfinished, requested him to return, which we must understand to 
 have been a real, earnest request, and only continued him after his refusal, which we 
 must take to have been his independent refusal, it was held that the action lay : and 
 this reason is given : " the very act of giving him employment is affording him the 
 means of keeping out of his former service." Would the Judges who laid this down 
 have held it actionaljlc to give a stray servant food or clothing or lodging out of 
 charity ? Yet these would have licen equally means of keeping him out of his 
 former service. The true ground on which this action was maintainable, if at all, 
 was the Statute of Labourers, to which no reference was made. But 1 mention 
 this case now as shewing how far courts of justice may be led if they allow them- 
 selves, in the pursuit of perfectly complete remedies for all wrongfid acts, to 
 transgress the liounds which our law, in a wise consciousness as I conceive of its 
 limited powers, has imposed on itself, of redressing only the proximate and direct 
 consequences of wrongful acts. To draw a line between advice, persuasion, 
 enticement and procurement is practically imiwssible in a court of justice ; who 
 shall say how much of a free agent's resolution flows from the interference of 
 other minds, or the independent resolution of his own ? This is a matter for the 
 casuist rather than the jurist; still less is it for the juryman. Again, why draw 
 the line between bad and good faith? If advice given mala fide, and loss sus- 
 tained, entitle me to damages, why, though the advice bo given honestly, but 
 under wi-ong information, with a loss sustained, am I not entitled to themi 
 According to all legal analogies, the bona fides of him who, l)y a conscious wilful 
 act, directly injures me will not relieve him from the obligation to compen.sate 
 me in damages for my loss. Again, where several persons happen to persuade to 
 the same effect, and in the result the party persuaded acts upon the advice, how 
 is it to be determined against whom the action may be brought, whether they are 
 til lie sued jointly or severally, in what pi-oportinns damages arc to be recovercil >. 
 I 1 Leon. 210. - T. R. 221.
 
 8G4 JUDGMENT OF COLERIDfiE, .T. [CHAP. VITI 
 
 Again, if, instead of limiting our recourse to the agent, actual or constructive, we 
 ■n-ill go back to the person who immediately persuades or procures him one step, 
 why are we to stop there 1 The first mover, and the malicious mover too, may be 
 removed several steps backward from the party actually induced to break the 
 contract : why are we not to trace him out ? Morally he may be the most guilty. 
 I adopt the arguments of Lord Abinger and my brother Alderson in the case of 
 Winterhottom v. Wn'ff/it^ ; if we go the first step, we can shew no good reason for 
 not going fifty. And, again, I ask how is it that, if the law really bo as the 
 plaintiff contends, we have no discussions upon such questions as these in our 
 books, no decisions in our reports ? Surely such cases would not have been of rare 
 occurrence : they are not of slight importance, and could hardly have been 
 decided without reference to the Courts in Banc. Not one was cited in the argu- 
 ment bearing closely enough upon this point to warrant me in any fm-ther detailed 
 examination of them. I conclude therefore what occurs to me on the first propo- ■ 
 sition on which the plaintiffs case rests. 
 
 I come now to the second proposition, that the decisions in respect of master 
 and servant, and the seducing of the latter from the employ ef the former, are 
 exceptions gi'afted on the general law traceable up to the Statute of Labourers. 
 This is of course distinct from the question of the extent of the exception, that 
 is, to what classes of servants it applies : but the enquiries are so connected 
 together in fact, and the latter has so obvious a bearing in support of the former, 
 that it will be better to take them both together. 
 
 Xow, in the first place, I cannot find any instance of this action having been 
 brought before the statute passed ; the weight of which fact is much increased 
 by finding that it was of common oociuTence very soon after. The evidence for 
 it is not merely negative ; for the mischief and the cause of action appear to have 
 been well known before, and the want of the remedy felt. The common law did 
 give a remedy in certain cases ; and Judges are found pointing out what that 
 remedy was, and to what cases it applied. From the cases collected in Fitzher- 
 bert's Abridgement, tit. Laborers, it appears that the distinction between the 
 action at common law and the action upon the statute was well known : wherever 
 the former action lay it was in trespass, and not on the ease : in saying which I 
 ' do not rely merely on the words, — writ of trespass, — which might be applicable to 
 trespass on the case ; but I rely on the operative words of the wTJt, which stated 
 a taking vi et armis : it might be joined with trespass quare clausiun fregit or 
 trespass for the asportation of chattels or false imprisonment. The count neces- 
 sarily charged the taking of the servant out of the service of the plaintiff ; whereas 
 the writ upon the statute, as appears from Fitzherbert's Natura Bre^aum, 167 B., 
 charges the retainer and admission of the servant into the defendant's service 
 after he has been induced to withdraw, or has withdrawn without reasonable 
 cause, from that of the plaintiff. I do not wish unnecessarily to multijily citations 
 from the Year Books ; but it will he necessary to refer to some, and at greater 
 length than they are foimd in the abridgments. I begin with one out of the order 
 of time, liecause it is so ftill to the purpose, and because it may be referred to as 
 
 1 10 jr. & yy. loo.
 
 CHAP. VIIl] LUMLEY V. GYE. 865 
 
 iibridged by Brooke (AbridgmciU, tit. Laborers, pi. 21), I think incorrectly in a 
 material point. He says that it was agreed in it, that case lay for the departure 
 by procurement, but not where the servant departed without procurement and 
 was afterwards reUiinod. The case is Vear Bool- Mich. 11 //. 71'', fol. 23 A., pi. 46. 
 Not, as he cites it with a slight inaccuracy, 21, 22. " Thomas Frame brings writ 
 of trespass at the common law against defendiuit for liis close broken, and one J. 
 his servant taken out of his service (pris hors de sou service), and certiiin sheep 
 driven away with force and arms." There were difl'erent pleadkigs and much 
 discussion as to the separate causes of action, which introduces some confusion 
 into the case. As to the servant, Treniaiii pleaded ; "wo found him wandering 
 in a certain place in another county ; and there he came and ottered his service 
 to us, and made covenant with us to serve us ; and so demands judgment." 
 SL-rene, for the plaiutifl", replies : " he has admitted that the servant was in oiu- 
 service, and that he has received him into liis service ; and so ho has admitted 
 our action." Hankford- says, however: "When the servant was wauderiug, 
 if the defendant had not cognizance that he was in your service, then this first 
 receiver cannot be adjudged a wrong done by the defendant but by the servant." 
 Upon this Hkreae amends his pleading, and says that the scrvajit made a coce- 
 naiU with t/w plaintiff to serve him in the office of " Berc/iier"-^ "for a whole 
 year, within which year t/ie defendant procured our servant to go out of our 
 service, by force of which procuremeid he went oiU of our service within the 
 year, and i/ie defendant retains him in his service; which matter we wish to 
 aver;" and demands judgment : on which Hill* says : " his writ of trespass as to 
 the servant does not lie upon the matter shewn ; for the plaintifl says that the 
 defendant did nothing but procure the servant to go out of his .service, by which 
 procm-ement he went out of his service, and was retained with the defendant, in 
 which case action on the Statute of Labourers is given, and not this action." 
 Skrene argues : " If a man procm'es my servant to go out of ray scr\'ice, and 
 retains him upon that, he does me wTong." Hankford and Hill both say, "True 
 it is that he does you wrong : but you shall not have a remedy on this manner of 
 writ as it is here." Culpeper-': "This action is tjiken upon an action at the 
 common law;" "and the actions which were at the common law before the 
 Statute of Labom-ers ai-e not taken away by that statute : and, if a man procure 
 and abet my servant to go with him in his service, action at common law lies 
 well. Hill : No certes, action at common law of trespfiss does not lie on such a 
 case ; for such a procurement cannot be said in any manner to be against 
 the peace. Thirning'^: If my servant before the statute went out of my service, I 
 suppose well that no action is given to the master ; but if a man took my servant 
 out of my service, there action of trespass lay at the common law, and still lies ; 
 and, if I am beaten by the abettment and command of a man, the commander is 
 
 ' A.D. 1409. ' Then .Justice of Common Pleas. See ante, p. 802, note ». 
 
 5 Shepherd. ■• Robert Hill, .Justice of the Common Pleas in 1108. 
 
 ^ John Golepcpper, Justice of the Common Pleas in 1400. 
 
 « William ThiruiiKj, Chief Justice of the Common Pleas in 1396;
 
 866 JUDGMENT OF COLERIDGE, j/ [CHAP. VIII 
 
 guilty of trespass : so in the case here, when we shall procure the servant to 
 depart and retains him with him, he seems guilty of trespass." But Hill 
 answers him: "Sir, in your case there is no marvel, because the principal actor 
 in your case is guilty of trespass : but the case at bar is different ; for the pro- 
 curement only is not a trespass against the peace, nor is the departure of the 
 servant a trespass against the peace ; then, if the cause of action is not against 
 the peace, the remainder which follows after it is not trespass against the peace: 
 and I well agree that the defendant in this case is guilty, as of a thing done 
 against the provisions of the statute; and this matter is as clearly within the 
 statute as it could be, both as to the servant, who has departed from his service, 
 and as to the defendant, who has presumed to retain him in his service against 
 tite statute. Hankford: I am of the same opinion, as my master has expressed, 
 that, if my servant depart out of my service, at common law I have no action, 
 and the cause was for that between my servant and me the contract sounds 
 m the manner of a covenant in itself (en luy meme), upon which no action was 
 given at the common law without a speciahty; and for this mischief was the 
 statute ordained and action given on it; wherefore, if you will not say that 
 he took your servant out of your service, as you have supposed by your writ, 
 this writ is not maintainable." Culpeper says: "if a man procure my ward 
 to go from me, and he goes by his procurement, I shall have ravishment of 
 ward against him." Hankford admits this, and says : the reason is, because 
 the ward "is a chattel and vests in him who has the right." After some more 
 discussion, Skrene amends, and says: "he came to our hoiuse, and procured 
 our servant, and took him, as we have supposed by our writ." And Tremain, 
 being ordered to answer, pleads : "he was wandering, and offered his services 
 to us ; and we received him : without this that we took him in manner as he 
 has alleged." And upon this, in the end, they seem to have gone to the 
 country. There were several points in this case : and it is not clear whether 
 on this part the Com't was ultimately divided or not: but it is clear that the 
 judges who argued in support of the count as fu'st pleaded contended only 
 that it shewed a trespass. Thirning admits that, before the statute, if a servant 
 went out of the service no action lay, but if he was taken trespass did; and 
 then contends that the procuring in the case at bar was a taking and made 
 the party guilty of trespass ; in which he was clearly wrong. Now, if at this 
 time case lay at common law for procuring the servant to depart, what becomes 
 of the argument of the necessity for the statute. Or if, where one party broke 
 a covenant at the instigation of another, case lay, why was not that apphcable 
 to the case of a covenanted servant. But it is clear that all agreed in this: 
 if the defendant had taken the servant under such circumstances, you may 
 have trespass at common law now as before the statute; but, if you cannot 
 lay it as a trespass, your only remedy is mider the statute. I may as well 
 add Fitzherbert's Abridgement (tit. Laborers, pi. 16), which is fuller, and I 
 think more accurate, than Brooke's. "Trespass at common law of his servant 
 taken out of his service with force. Tremain: We found him vagrant in a 
 certain place in another county, and there he came and proffered his service
 
 CHAP. VIIl] I,UMI,EY V. OYK. 8G7 
 
 to \is, and made covenant with lis to son-o. Judgment if action &c. Shrene: 
 lie witi rotiiinoii with ns to servo us in the office of a borgior for a yojvr, 
 within whicli the defendant procured him to go out of oiu" service; by reason 
 of which he went out of our service within the year and hired iiinisolf witli 
 the defendant. Hill: This action does not he on the matter. Sireiu;: If a 
 man procure my servant to go out of my service, and retains him, ho does 
 me wrong. Hill and Ilaidford: That is tnie; but you shall not have remedy 
 on such a writ as this is. Culpepcr: The action which was at common law 
 is not taken away by the Statute of Labourers. Tkiming: At common law, 
 liefore the statute, if my servant went out of ray service, no action was given 
 me; but, if a man took him out of my service, an action was given at the 
 common law, and still is; and, if I am beaten by the command of another, 
 the commander is a trespa-sser. Hill: The jirocnroment only is not trespass 
 again.st the peace, nor the departure of the servant: then, if the cause of the 
 action is not against the peace, the remnant, to wit the retainer, cannot be : but 
 this case here is openly rcithin the -itntute, as it may be against the servant upon 
 the departure, and against the master upon the retainer. Hank-ford and Hill' : 
 There was no action at the common law upon the departm-e, because the con- 
 tract between the servant and me sounds in covenant in a manner; and for 
 that mischief was the statute made; wherefore, if you will not say that he 
 tool- your servant, this action does not lie. Whereupon the plaintiff' said that 
 the defendant procured his servant &c. and took him: and the other side 
 traversed this : et alii e contra." But, says Fitzherhert, it seems that the 
 defendant should have traversed the taking at first in his plea in bar. In a 
 ca.se- in Yearb. Mich. 47 E. III. fol. 14 A., pi. 1.^, which was, on the Statute 
 of Labourers, against a servant for departing within the term for which he 
 was retiiined, the plea wa.s "we were never in i/oiir service;" and the question 
 was whether that was good without a traverse of the retainer; and Finchden^ 
 said this, which was agreed to by the whole Coiu-t : "At common law, before 
 the statute, if a man took my servant out of my service, I should have writ 
 of trespass there, where he was in my service bodily : now the statute was 
 made for this mischief, that if he never comes into my service, after he has 
 made covenant to serve me, but he eloignes himself from me, I shall have 
 such writ and suggest that he was retained in my sei-vice and departed, as 
 here is: wherefore it is nece.s.sary to traverse the retainer;" which accordingly 
 was done by the defendant, issue taken, and sic ad patriam. 
 
 Any one, I am certain, who will go through the cases abstracted by Pitz- 
 lierhert imdcr the title Laborers, will be satisfied that at common law, before 
 the statute, such an action as the present could not be maintained. Under 
 that title 61 cases are abridged : many of them are for the seduction of ser- 
 vants ; but there is no instance of any one in which the action at common law 
 was sustained, unles.s an actual trespiuw Wius charged : and it is clear, from 
 the case which I have cited at so much length, that the distinction between 
 
 ' Qe. " as HiU baa said?" = A.D. 1.373. 
 
 ' William de Finchcden, Chief Justice of the Common Pleas; April It, l.')7"2.
 
 868 JUDGMENT OF COLERIDGE, J. [CHAP. Vm 
 
 taking and procuring to go was familiar to tlie lawyers of that day. I can 
 hardly imagine that this could have been said, if the common law would have 
 given relief in such a case : and, if it could, the rapid growth of the action 
 after the Statute of Labourers had passed would be difficult to account for. 
 
 I come then to the Statute of Labom-ers (23 Ed. III.) ; and my object now is 
 to shew that nothing in the provisions or policy of that statute will warrant the 
 action under the circumstances of this case ; and that the older authorities are 
 decidedly against it. As we learn fi-om the preamble, it was enacted in con- 
 sequence of the great mortaUty among the lower classes, especially workmen 
 and servants, in a pestilence which had prevailed in 1348-9. This pestilence will 
 be fomid mentioned in our historians. And in the preamble it is said: "Many 
 seeing the necessity of masters, and great scarcity of secvants, wiU not serve 
 miless they may receive excessive wages, and some rather willing to beg in 
 idleness, than by labour to get their living ; we considering the grievous incom- 
 modities, which are the lack especially of ploughmen aiid suoh labozirers may 
 hereafter come, have" &c. "ordained." This preamble is followed by an enact- 
 ment, that every person of whatever condition, free or bond, able in body, and 
 under the age of sixty, not living by merchandise nor having any certain craft, 
 nor having of his own wherewith to live, nor land of bis own on the cultiva- 
 tion of which he may occupy himself, and not being in service, shall be com- 
 pelled to enter into service when required on customary wages. By the second 
 section it is made penal by imprisonment for any mower, reaper, or other 
 labourer or servant of whatsoever state or condition he shall be, to depart 
 from service before the expiration of the term agreed on; and no one is to 
 receive or retain such offender in his service under like pain of imprisonment. 
 This ordinance is the foundation of the action for the seduction of a hu'ed 
 servant. Upon reference to Fitzherbert, JS^cUu7-a Bremiim, 167 B, it will be 
 seen that the writ in such an action always recited the statute. Now it will 
 be observed that, in order to bring a person within the first section, he must 
 have been one who was not hving by merchandise, nor having any certain 
 craft, "certmn habens artificium," nor having of his own wherewith to live, 
 "habens de suo proprio unde vivere possit," or land of his own in the culture 
 of which he can occupy himself: and these hmitations are more pointed by 
 the second chapter, which speaks of "messor falcator aut alius operator vel 
 serviens." Looking at these words, and the language of the preamble, it is 
 clear that mechanics and labourers in husbandly were the principal objects of 
 the statute : and the decisions were accordingly. Fitzherbert (Sat lira Brevimn, 
 168 E) says, "And so a gentleman by his covenant shall be boimd to serve, 
 although he were not compellable to serve. For if a gentleman, or chaplain, or 
 carpenter, or such which shoidd not be compelled to serve, &c. covenant to serve, 
 they shall be bound by their covenaiU, and an action wiU lie against them for 
 departing from their service." And Lord Hale in a note refers to Yearb. 
 Mich. 10 H. TV.i fol. 8 B. pi. 30, as shewing that a writ does not he on the 
 
 1 A.D. 1431, 
 
 I
 
 CHAP. VI II] LUMLEY I'. GYE. 869 
 
 statute for the departure of a chai>laiii who is rotaiiiod to say tho mass. Several 
 cases will he found earlier in the Year Books to the same eftbct. In Yearb. 
 Trin. 50 E. IIIA foL 13 A. pi. 3, is a ca.se in which the parson of B. sued Thomas 
 F., a chaplain, on tho Statute of Labourers, and counted of a covenant made 
 with him to serve in the office of seneschal, and to be his parochial cliaplain 
 for a certain term, and complained of a ileparturo within the term. As to tlie 
 office of seneschal, the defendant traversed the covenant; and, as to the residue, 
 contended tliat the statute was only nuwle for lalwurers and artificers, and he 
 was neither the one nor the other, but the servant of Clod, and so w;vs not 
 bound by the statute. Clopton, for tlie plaintiffs, took a distinction between 
 a parochial and a private chaplain, contending that tho formei', from the variety 
 and daily pressiu'c of liis thities, was in many respects to be regarded as a 
 ^oui'er, and within the statute "as any otter person of the people" (an early 
 authority by the way for the modern distinction of the working clergy) 2. The 
 case was adjom-ned, and tho Judges of the King's Bench were consulted : and 
 the decision was that a chaplain was not bound by the statute; and as to 
 that part of the writ he w;»a discharged. Tho same law will be fomid in Yearb. 
 Mich. 4 H. IV.^ fol. 2 B. pi. 7, where the count on the statute, against a chaplain, 
 was that he wa.s retained by the plaintift' to be liis chaplain, and also his 
 proctor, and collector of tithes, and to serve him "as pees et as maines" for a 
 certain time. The retainer to be proctor and collector was specially traversed : 
 and it was pleaded that his retainer as chaplain was only to do divine service. 
 The decision is not very clearly stated ; but Fitzherbert {Ahrid-gment tit. 
 Laborers, pi. 51) appears to have understood that it was against the defendant ; 
 
 1 A.D. 1370. 
 
 - This part of the case is as follows: 
 
 Hanimer [counsel]: And as to what he has surmised: that we made covenant with 
 him to be parochial chaplain, and that we departed out of his service: we apprehend 
 that the statute was not to any other intent than as to those who are labourers 
 artificers ; and this is neither one nor other, but the servant of God ; so he is not bound 
 by tlie statute: so we apprehend not that this action lies against us; for every one of 
 the other sorts of servants (chescun auter servant), if he be in health and bodily power, 
 he is bound to do liis service, and his work from day to day; but the cliaplain is not 
 bound to sing every day, if he will not, for divers causes which lie in his conscience (i.e. 
 to judge of the sufficiency of which cause is left to his conscience) : and so he may cease 
 to sing for one day or two, so that he is in quite a different degree from a labourer or 
 artificer. Clapton [counsel]: This man, who is his parochial chaplain, may more 
 readily be adjudged a labourer than another chaplain who is to serve only as private 
 priest (ou parson singuler).. For a parochial priest has many other things to do besides 
 to sing the mass and other divine services ; for it behoves him to visit the sick of the 
 parish in their houses, to administer to tlieiii the rights of Holy Church, and so it 
 behoves that parsons of the Holy Chmch should have their needful assistance, for they 
 cannot do it themselves. Wherefore it seems in divers respects that he is as much 
 within the statute as any other person of the people. Bklknai- [Robert Bilknap, Chief 
 Justice of Common Pleas, October 10, 137-5]: This was a case and the matter was 
 adjourned, in the other term, till now: and it is our opinion, and that of our fellows of 
 the King's Bench also, that he is not bound by the statute as another person is : where- 
 fore as to this point we dismiss you ; and, as to the remainder ou which you are at issue, 
 keep your day &c. ' A.D. 1402.
 
 870 JUDGMENT OF COLERIDGE, J. [CHAr. VIII 
 
 for be abstracts the case very shortly, and adds: "quod minim, for be sball 
 not be compelled to serve, but the statute is in servitio congruo." Immedi- 
 ately after this he abstracts Pasnh. 12 H. VI} thus— "Action on the Statute 
 of Laboui'ers is not maintainable against an esquire." And in Yearh. Hil. 19 
 //. VI. fol. 53 B. pi. 15,2 jg a case on the stixtute, where the comit charged a 
 retainer in the office of labourer; and the pleti was: he retained us to collect 
 his rents in a certain place, without this that we were retained with him in 
 the office of labourer. Neioton^ .says: "he cannot be reqtiired to serve him 
 in the office of collecting his rents, nor to be bis seneschal ; which proves that 
 he cannot be punished by this action ; for this action lies only against those 
 who can be required to serve the party as a labourer." And then, by the 
 advice of all, the issue was held well tendered. 
 
 I am tempted to add one case more from Yearh. Mich. 10 H. VI.* fol. 8 B. 
 pi. 30. The Prior of W. brings writ on the Statute of Labourers against a 
 chaplain, and counts that he was retained in bis service with him for a year 
 to do divine service, and that he departed within the year &c. Defendant's 
 counsel demands judgment of the writ : " for you see well how he brings this 
 action against a chaplain upon the Statute of Laboiu-ers; and the statute is 
 only to be understood again.st Labourers in Husbandry. Strange^: The writ 
 is not maintainable by the statute ; for you cannot compel a chaplain to sing 
 in mass ; for that at one time he is disposed to sing it, and at another not ; 
 wherefore you cannot compel him by the statute. Cottesmore'^: To the same 
 intent ; for it was not made but for labourers in husbandry : as in case of a 
 knight, an esquire, or gentleman, you cannot compel them to be in your service 
 by the statute, for that the statute is not to be understood but of labourers, 
 who are vagi-ant, and have nothing whereby to hve; these shall be compelled 
 to be in service ; but a chaplain hath whereof he may live in common under- 
 standing as a gentleman:" wherefore the writ is abated, by the whole Com-t. 
 Brool-c {Ahridgemeat, fol. 57, tit. Laborers, pi. 47), abstracting this, gives, as 
 the reason of the judgment, " for it is to be understood that he hath whereof 
 he may live, and is not always disposed to celebrate di\'ine service." It will be 
 observed that many of these cases are with respect to chaplains: in one of 
 them it is said that a chaplain is the servant of God ; in another that the service 
 for which the retainer is alleged must be a service congnious to his condition. 
 At this distance of time, it may be tUfficult, without more inquiry into history, to 
 assign a reason why there should be such a majority of cases relating to chaplains. 
 It must be referable of course to some circumstances in the state of society at 
 those periods. It may be collected, from a royal mandate to the Archbishops and 
 Bishops, that the services of stipendiary chaplains were at the date of the 
 
 1 A.D. 1434. There is no Yearbook of this term. " A.D. 1441. 
 
 ^ Richard Newton, Justice of Common Pleas; 3rd November, 1439. 
 ■> A.D. 1431. 
 
 5 James Strangeways, Justice of the Common Pleas, February 6, 1426. 
 ^ John Cottesmore, Justice of the Common Pleas; 15 October, 1430: afterwards, in 
 1439 (17 H. VI.), Chief Justice of the Common Pleas.
 
 CHAP. VIIl] LUMLEY V. OYE. 871 
 
 statute much in request; the Bi8ho}>s aro requireil to enforce their serving 
 for their .icciwtoined siilary under iHiin of suspension and interdict. This 
 mandate is printed in the SUitutes at Large at the end of the stiitute: but uouo 
 of the Ciises refer to it. But it is clciir that the Courts were not laying down 
 any rule of law a[)i)licable to chaplains only. They aro repeatedly put in the 
 same ciitegory with knights, squires, gentlemen, all who must be understood to 
 have meiuis of living of their own. The Courts construed the statute, and iis it 
 seems to me quite correctly. They said : if any of these covenants to serve, 
 he will be bound by his coveuaut, aud an action will he at common law for the 
 breach; but, if you rely on the compulsion of the stiitute, such pereons are not 
 within it. Those authorities, of a date when the sUitute nui.st have lieen well 
 uudei-stood, might bo multiplied : and, whatever may be said of the uncertainty 
 aud often conflicting uatiu-e of decisions from the Year Books, and, however wo 
 may now smile at some of the re;usouings of the Judges, probably not without 
 their weight when uttered, they seem to me satisftictorily to estiibhsh the 
 principle, that actions framed on the statute were governed by a consideration 
 of the object and language of the statute, aud that these pointed only to the 
 compulsion of labom-er.s, handicraftsmen, aud people of low degree who had no 
 means of their own to hvo upon, aud who, if they did not hve by wages earned 
 by their labour, would be vagrants, mendicants or worse. If this be so, I 
 apprehend it is quite clear that Johanna Wagner coidd not have been compelled, 
 while the stiitute was unrepealed, to serve the plaintifl' in any of the capacities 
 stated in this declaration. Nor, I think, can it be successfully contended 
 that we may not take judicial cognizance of the nature of the service spoken 
 of in the declaration. Judges are not nece.ssarily to be igjiorant in Court of 
 what every one else, aud they themselves out of Court, are familiar with ; nor 
 was that unreal ignorance con.sidered to be an attribute of the Bench in early 
 aud strict times. We find in the Year Books the Judges reasoning about the 
 ability of knights, e.squires and gentlemen to maintain themselves without 
 wages : distinguishing between private chaplains and parochial chaplains from 
 the nature of their emplojTuents : and in later days we have ventured to take 
 judicial cognizance of the moral qualities of Uobinson Crusoe's "man Friday^" 
 and JEsop'i "frozen snake-". We may certiiinly therefore tiike upon oiu^clves to 
 pronouBce that a singer at operas, or a dramatic artiste to the owner and 
 manager of Her JIajesty's theatre, is not a messor, falcator, aut alius opcrarius 
 vel serviens, within either the letter or the spirit of the Stivtutc of Labourers. 
 And, if wo were to hold to the contrary, as to the profession of Garrick and 
 Siddons, we could not refuse to hold the same with regard to the sister arts of 
 Painting, Sculpture aud Architectm'e. We must lay it down that Reynolds 
 when he agreed to paint a pictm-e, or Flaxman when he agreed to model a statue, 
 had entered hi to a contract of service, and stood in the relation of servant to him 
 with whom he had made the agi-eemeut. But here w^e are not without authority. 
 In Taylor v. Ncri^ where the declaration in case stated that the plaiutifl", 
 
 ' See Forbes v. Kiiiri, 1 Dowl. P. C. 672. 
 » See Hoare v. Silverlock, 12 y. B. U21. » 1 Esp. N. P. C. 380.
 
 S72 JUDGMENT OF COLERIDGE, J. [CHAP. VIII 
 
 being manager of the Opera House, had engaged one Breda as a public singer 
 during the season at a salary, that the defendant had assaulted and beaten Breda, 
 by which plaintiff lost his service as a public performer, E>jre,'Q.. J. nonsuited 
 the plaintiff, saying the record stated Breda was a servant hired to sing, and 
 he was of opinion he was not a servant at all. It seems to me that this is the 
 language of common sense ; and no case has been cited which conflicts with it. 
 But, if Johanna Wagner be not within the statute, and could only have been 
 sued, as at common law, upon her contract for the breach of it, it w^ill follow, I 
 conceive, that the present action could not have been maintained against the 
 defendant while the statute was in force, and of com'se cannot now, if, as I 
 contend, the action arises from and is limited by the pm'view of the statute. 
 Under the statute the one depended on the other : if a party sued on the second 
 branch of the second section, he was bound to shew the servant, received or 
 retained wrongfully, was such a one as was spoken of in the first branch ; for so 
 were the words, talem in servitio suo recix^ere vel retinere presumat. In the 
 action accorchngly against the seducer, the condition of the servant seduced, 
 and the character of the service, were always material ; if not stated in the count, 
 the defendant introduced them in his plea, where they were such as were thought 
 to take the servant out of the statute. 
 
 I conclude then that this action cannot be maintained, because : 1st. Merely 
 to induce or procure a free contracting party to break his covenant, whether 
 done maliciously or not, to the damage of another, for the reasons I have stated, 
 is not actionable ; 2nd. That the law with regard to seduction of servants from 
 their masters' employ, in breach of their contract, is an exception, the origin of 
 which is loiown, and that that exception does not reach the case of a theatrical 
 performer. 
 
 I know not whether it may be objected that this judgment is conceived in a 
 narrow spirit, and tends unnecessarily to restrain the remedial powers of the 
 law. In my opinion it is not open to this objection. It seems to me wiser to 
 • ascertain the powers of the instrument with which you work, and employ it only 
 on subjects to which they are equal and suited ; and that, if you go beyond this, 
 you strain and weaken it, and attain but imjierfect and unsatisfactory, often 
 only unjust, results. But, whether this be so or not, we are limited by the 
 principles and analogies which we find laid down for us, and are to declare, not to 
 make, the rule of law. 
 
 I think, therefore, with the greatest and most real deference for the opinions 
 of my brethren, and with all the doubt as to the correctness of my own which 
 those opinions, added to the novelty and difficulty of the case itself, cannot but 
 occasion, that our judgment ought to be for the defendant: though it must be 
 pronounced for the plaintiff. 
 
 IHE END. 
 
 CAMBEIDGE: PBINTED by C. J. clay, M.A. & son, at IHE UNrVEKSITY PKEBS. 
 
 LAW LIBRARY 
 
 UNIVERSITY OF ( ALIFORNLA. 
 
 LOS AN'^T^i.ES
 
 
 
 *■ 
 
 
 .11- .<7. > 7-V-'